Petition for A Writ of Certiorari — Serfass v. United States

Fh aaa Pin APNE HRN: OORT, ae we EINE ae ineHk tliat ae

INDEX

Opinions Below .....................000004

Jurisdiction ............202.2.2. 0.0002... 0000.

Question Presented ..............0......0.0.4.

Constitutional and Statutory Provisions Involved .....

| yc

Reasons for Granting the Writ ........0.........

Conclusion ...........0.0. 0020000000 ees

Appendix A : 2... ..0.0 2.000000 0002 ee ee eee ee

Appendix B ...... Vickie sey Peo 0 ose ye ees

ee ee

CITATIONS

Cases:

- Carroll v. United States, 354 U.S. 394 (1957). ... 9,

Ehlert ». United States, 402 U.S.99 (1971) .....

Musser v. United States, 42 U.S.L.W. 3286 .....

United States v. Apex Distributing*Company, 270

FF. 2d, 747 (9th Cir., 1959) 2.2...

United States v. Bordon Co., 308 U.S. 188 (1939) .

United States v. Brown, 481 F. 2a 1035 (8th Cir.,

it) are eae Se ee eee € ee ee ee ee

United States v. Findley, 439 F. 2d 970 (Ist Cir.,

ie dt Se eee 6,

, United States v. Folino, No. 42—1974 (3rd Cir.

J June 29,1973) 2.2... eee eee

United States v. Grochowski, 454 F. 2d 655 (7th

Cir., 1971) 2. ee ee ee ee ee eee 8,

United States v. Gustavson, 454 F. 2d 677 (7th

Cir., 1971) 2... ee eee eee .

United States v. Hill, 473 F. 2d 759 (9th Cir.,

OU tal 6666 oF 45h EK Rea ERS Lathes =

United States v. King, No. 72—2213, decided

March 21, 1973 (C.A.4) 2.00 00.0....000..

(1)

_ ede |

(I)

Page

Cases—Continued

United States v. McCreery, 473 F. 2d 1381 (7th

Cir., 1973) 2.2... ee 5,13

United States v. Martin Linen Supply, 485 E, 2d

1143 (Sth Cir., 1973) 2... 0000000000000... 5

United States v. Pecora, 484 F. 2d 1289 (3rd Cir.,

OOS) 5 ee ew oh ee eee eee ee aeeesn 4,12, 1:4

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

4 td | ea ee 8,9,11,12

United States v. Rothfelder, 474 F. 2d 606 (6th

Cir.), cert. denied, 413 U.S. 922 (1973) ...... 5, 12

United States v. Shomock, 462 F. 2d 338 (3rd Cir.,

OPTED baw ees we ae eM ERE ASSES 4

United States v. Sisson, 399 U.S. 267 (1970) .. 7,10, 14

United States v. Southern Railway Company, 485

F. 2d 309 (4th Cir., 1973). ....00.0.0..000.. 5

United States v. Velazquez, 482 F. 2d 139 (2d Cir.,

SOTS) gcc wae base owe eendeanenns 12,13 °

United States v. Weller, 401 U.S. 254 (1971) .... 9

United States v. Weller, 466 F. 2d 1279 (9th Cir.,

OPTED) gees bebe e bake nna deyvuns 11,12

United States vy. Ziskowski, 465 F. 2d 480 (3rd

Oi, U9TZD 66k cb 64 ov wb de ewnereaevs 4

Statutes:

Federal Rules of Criminal Procedure, Rule 23(a) . . 5

18US.C.3731 ........0.0 0.0.2.0... .00000. 1,2

28 U.S.C. 12541)... ee l

50 U.S.C.A. 462(a) 22.2 ee. 3

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Gu the Supreme Gourt of the Bnited States

OCTOBER TERM, 1974

No.

UNITED STATES OF AMERICA

Vv.

DAVID EMERY SERFASS, PETITIONER

PETITION FOR WRIT OF CERTIORARI TO THE UNITED

STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

DAVID EMERY SERFASS, petitions for a Writ of Certiorari

to review the Judgment of the United States Court of Appeals

for the Third Circuit in this case.

OPINIONS BELOW

The Opinion of the Court of Appeals (Appendix “A”, infra,

pages 15-18) is not yet reported. The Opinion of the District

Court (Appendix “C”’, infra, pages 20-43) was not reported.

JURISDICTION

The Judgment of the Court of Appeals (Appendix “B”, infra,

page 19) was entered on February 20. 1974. The jurisdiction of

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

QUESTION PRESENTED

1. Whether under the Criminal Appeals Act (18 U.S.C.

3731), which provides that the United States may appeal to the

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court of appeals from a decision of a district court dismissing an

indictment “except that no Appeal shall le where the double

jeopardy clause of the United States Constitution prohibits

further prosecution,” an Appeal by the United States is barred

by the prior jeopardy when the district court grants a Pre-trial

Motion to Dismiss, relying on facts outside the indictment, the

district court relying on facts derived from the defendant’s’

affidavit in support of his Motion, his Selective Service File, and

from Stipulations of Counsel at oral argument on the Motion to

Dismiss?

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The Fifth Amendment to the United States Constitution

provides in pertinent part:

“ ..nor shall any person be subject for the same

offense 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 decision, judge-

ment, or order of a district court dismissing an indict-

ment 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.

“An appeal by the United States shall lie to a Court

of Appeals from a decision or order of a district court’s

suppressing or excluding evidence or requiring the

return of seized property in a criminal proceeding. not

made after defendant has been put in jeopardy and

before the verdict or finding of an indictment or in-

formation, if the United States Attorney certifies to the

district court that 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

on

\

3

been rendered and shall be diligently prosecuted.

“Pending the prosecution and determination of the

appeal in the foregoing instances, the defendant shall be

released in accordance with Chapter 207 of this title.

“The provisions of this Section shall be liberally con-

strued to effectuate its purposes.”

STATEMENT

Your Petitioner had» been ordered for induction into the

armed forces of the United States on December 18, !970. The

induction was to have taken place on January 18, 1971. On

December 29, 1970, your Petitioner requested a special torm

for conscientious objectors (Form SSS— 150). (Selective Service

File, pages 74, 75.) His local board, Local Board No. 89, then

received the completed Form 150 from the Petitioner. who

requested a courtesy interview on January 11, 1971, and re-

ceived such on January 13, 1971. (Selective Service File, pages

77, 78 97.) The local board considered his entire file at a

meeting on January 13, 1971, and on January 14, 1971, your

Petitioner was informed that the Board unanimously agreed

“that there was no change over which the [Petitioner] had no

control.” On this basis, the board decided not to re-open his

file. (Selective Service File, 103.) The Petitioner then refused

induction at the examining station in Wilkes-Barre, Pennsyl-

vania, on January 18, 1971. (Selective Service File, 118.) Your

Petitioner was thereafter indicted and arraigned, the indictment

being for a violation of 50 U.S.C. App. 462(a). At the arraign-

ment, the Petitioner pleaded “not guilty” and the trial date was

set for January 9, 1973. Subsequent to this, a Motion to

Postpone the Trial was filed and granted. At the same time, a

Motion to Dismiss the Indictment was also-filed. The Briefs of

the Government and your Petitioner were submitted and argu-

ment on the Motion to Dismiss was held before Judge Michael

Sheridan, Chief Judge, United State District Court for the

Middle District of Pennsylvania.

By 2 NEMESIS LOSE PONTE SOLEIL IE, TAS EERE NBS

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In an Opinion filed July 16, 1973, Judge Sheridan granted

the Petitioner’s Motion to Dismiss the Indictment. The Court

held that the statement of reasons was sufficiently ambiguous

to be reasonably construed as a rejection on the merits which

would prejudice the Petitioner’s right to in-service review and,

therefore, granted the Motion to Dismiss.

The United States filed a Motion of Appeal to the Court of

Appeals seeking a review of the district court’s order dismissing

the indictment. The Government in its Brief contended jurisdic-

tion on the basis of 18 U.S.C. 3731. Your Petitioner’s Brief

contended that the order of the district court dismissing the

indictment was not an appealable order and that the Circuit

Court of Appeals, therefore, did not have jurisdiction to hear

the appeal as your Petitioner would then be put twice in

jeopardy. The Court of Appeals held that under Section 3731

jeopardy had not yet attached and, therefore, dismissal of the

indictment in the instant case was an appealable order, and

went on to decide the merits of the Government’s appeal, and

basing its decision on Musser v. United States, 42 U.S.L.W.

3286 (U.S., November 13, 1973), decided that since the cases

of United States v. Shomock, 462 F. 2d 338 (3rd Cir., 1972),

United States v. Ziskowski, 465 F. 2d 480 (3rd Cir., 1972, and

United States v. Folino, No. 72—1974 (3rd Cir. June 29, 1973),

among others relied upon by your Petitioner were overruled and

that, therefore, the “‘no’ man’s land” discussed in Ehlert vy.

United States, 1971, 402 U.S. 99, 103—04 & n. 7, 107, did not

exist, your Petitioner would have had the chance for in-service

review of his conscientious objector request and was not denied

due process of law.

In reaching the result that the order of the district court

dismissing the indictment was an appealable order, the court

relied on United States v. Pecora, 484 F. 2d 1289 (3rd Cir.,

1973) which held appealable a district court’s pre-trial dismissal

of an indictment based upon a stipulation of facts upon which

4

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the indictment was returned. The court placed heavy emphasis

on the fact that the Petitioner had not waived his right to a jury

trial pursuant to Rule 23(a) of the Federal Rules of Criminal

Procedure and that even though your Petitioner —

“.. had established a«defense as a matter of law,

rather than upon the finding, as in Pecora that there

were insufficient facts as a matter of law to support any

conviction, we see no significant constitutional dif-

ference between the two situations. Both involved a

determination as to the legal sufficiency of certain facts,

and in either case, denial of the Motion to Dismiss

entitled the defendant to the jury trial which he has not

waived. We therefore hold that jeopardy did not attach

and the dismissal of the indictment in the instant case

was an appealable order.”

Citing United States v. Martin Linen Supply, 485 F. 2d 1143

(Sth Cir., 1973), United States v. Brown, 481 F. 2d 1035 (8th

Cir., 1973). . .

The notation is also made in the footnotes that contrary

decisions stand in other circuits, namely, United States vy.

Southern Railway Company, 485 F. 2d 309 (4th Cir., 1973);

United States v. Rothfelder, 474 F. 2d 606 (6th Cir.), cert.

denied, 413 U.S. 922 (1973); United States v. McCreery, 473 F.

2d, 1381 (7th Cir., 1973).

REASONS FOR GRANTING THE WRIT

This case raises very important issues on the meaning of the

double jeopardy clause of the United States Constitution and

the statutory construction of a recently amended Criminal

Appeals Act, 18 U.S.C. 3731. The construction of this statutory

» section, as applied by the Third Circuit Court of Appeals in this

case, has put the defendant, your Petitioner, in jeopardy in

violation of the clear import of the statute itself and the United

States Constitution.

Title 18, U.S.C. 3731 provides in pertinent part:

“In a criminal case, an appeal by the United States

6

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 further

prosecution ...”.

The question presented as to whether or not the Circuit Court

of Appeals had jurisdiction to hear an appeal by the Govern-

ment from the disinissal of an indictment was faced by the

United States Court of Appeals, First Circuit, in United States

v. Findlev, 439 F. 2d 970 (Ist Cir., 1971). In that case the

defendani. under a !—A classification by the Selective Service

System, was ordered to report for induction on June 24, 1969.

He completed and returned to his local board the necessary SSS

Form 150, seeking to be classified as a conscientious objector

on June 2, 1969. The board, after consideration of his claim,

wrote to him as follows:

‘This letter is to advise that your case was considered

by the board at a meeting held June 24, 1969. The

board did not re-open your classification.”

On the date of induction, which was then scheduled for August

26, 1969, the defendant reported but refused to submit. He was

indicted under 50 U.S.C. App. Section 462. He filed a Motion

to Dismiss the Indictment on the ground that the board did not

give him any reasons for its refusal to re-open his classification.

At hearing on the Motion to Dismiss the Government stipulated

that the defendant’s case was a post order to report situation

and, also, that the board had given no reason for its refusal to

reopen. The district court found in favor of the defendant and

granted his Motion to Dismiss. The Government appealed under

18 U.S.C. Section 3731.

' The Court of Appeals in considering the question of jurisdic-

tion examined Section 3731, paragraph 6 authorizing appeal to

the Court of Appeals, which then read as follows:

“From a decision or judgment, setting aside or dis-

a el nk ee

missing ary indictment or information, or any count

thereof, except where a direct appeal to the Supreme

Court of the United States is provided by this section.”

In citing United States v. Apex Distributing Company, 270 F.

2d, 747, (9th Cir., 1959), that court stated that that section

authorized appeals only from those dismissals based upon

defects in the indictment or information or in the institution of

the prosecution. The court then stated,

“We believe this limitation properly reflects the

statutory purpose, at least to this extent: that if a

dismissal is a result of the showing of evidentiary facts,

dehors the indictment, which, if established at a trial

would constitute a defense on the merits, the court’s

ruling, however described... is, in effect an acquit-

tal... and thus, not within the attended purpose of the

appeal statute. Findley, did present a defense on the

merits (the invalidity of the induction order due to

improper classification), based on such independent

facts.” (Findley, supra, at 972.)

The court further supports its judgment by stating that if the

defendant had waited until trial to set forth and approve the

facts as presented in the hearing on the Motion to Dismiss, he

would have, assuming a correct view of the law by the court

been entitled to an acquittal from which no appeal weld lie.

This conclusion is arrived at even though the court explicitly

stated that Findley had not formally, been put in jeopardy and

even though the parties had stipulated to additional facts and

questions. In citing United States v. Sisson, 399 U.S. 267, 90 S.

Ct. 2117, 26 L. Ed. 2d 608 (1970), in which the basic ground

rules for the exclusion of appeals was stated as being where the

decision of the court was based on the merits, the court con-

cluded as follows:

“If an appeal will lie in the present case, while it

cannot if the defendant waits and subjects himself to

jeopardy, informed counsel believing they have a

defense on the merits will henceforth protect their

MPL ERED REPELS ERIE LIE, 2 SLO GLEE LAE LP E OLE IE GAGS EPO OTE LE EG

8 ~

clients by avoiding and expediting procedure otherwise

beneficial to all concerned, and only ignorant andé ill-

advised defendants will subject their defense on the

merits to a Gove:nment appeal. We will not adopt such

a penalizing construction of the statute.”

With this conclusion, the appeal was dismissed for want of

jurisdiction.

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

decided the identical jurisdictional question. That case also

involved a Selective Service violation under 50 U.S.C. App.

Section 462, a Motion to Dismiss the Indictment and a district

court granting the defendant’s motion. The Government

appealed under 18 U.S.C. Section 3731. The Court held that in

a case where the district court granted a registrant’s motion for

a ‘dismissal of the indictment and a prosecution for failure to

submit to induction and it made no reference at all to the

wording or form of the indictment itself ‘or to the manner in

which the grand jury considered the original indictment, and

where the arguments on the hearing on the motion to dismiss

were elated ‘to the local board’s procedures with reference to

the processing of registrant’s claim, and where the district court

rules that the local board had erroneously refused to reopen the

registrant’s classification, the granting of the registrant’s motion

for dismissal of the indictment was not based upon a defect in

the indictment or in the institution of the prosecution but

rather on ‘the merits and, therefore, appeal by the Government

was precluded. In a companion cas. of United States vy.

Grochowski, 454 F. 2d 655 (7th Cir., 1971), the court reached

the same conclusion. Here, as in Ponto, supra, the argument was

made that in the alternative the decision of the district court

was available to the Supreme Court under the “motion in bar”

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

3731 as it then existed. The court then held that the dismissal

of the indictment was not a “motion in bar” because of the fact

that the defendant did not confess to the crime and claim

ard A EO Gs TUE Se PY 4 LO LWERPEP NS LE MGI VPA AES. BELL AI MOBS

9

immunity but to the contrary argued that he was not guilty of

having committed a crime. Here the court cites United States v.

Weller, 401 U.S. 254, 91 S. Ct., 602, 28 L. Ed. 2d 26 (1971). In

addition, the court followed its holding in Ponto, supra, and

ruled that the appeal from the district court, which had granted

the defendant’s Motion to Dismiss the Indictment, should be

dismissed for want of jurisdiction.

Both the cases then were reheard by the court en banc, and a

more particular, involved legislative and statutory history with

reference to the appealability of criminal cases by the Govern-

ment was iooked into. The court stated,

“Thus, the Government, under the 1948 legislation,

could appeal under paragraph 6 from dismissals of in-

dictments under Rule 12 which weuld have been

cognizable in legal basis as orders responsive to demur-

rers or pleas in abatement at common law. And, as

indicated earlier, these common law pleas were limited

to objections to the wording in the indictment or to the

proceedings culminating in the issuance of the indict-

ment.” Ponto, supra. at 6060.

In responding to the question as to whether or not the court

should interpret paragraphs of the former Section 3731 accord-

ing to the plain meaning of ‘the words in the provision as

proposed by the government, te court answered and cited

Carroll v. United States, 354 U.S. 394, 399, 77 S. Ct.. 1332,

1336, 1 L. Ed. 2d 1442 (1957),

“It is axiomatic, as a matter of history as well as

doctrine, that the existence of appellate jurisdiction in a

specific federal court over a given type of case is de-

pendent upon authority expressly conferred by statute.

And since the jurisdictior.2! statute prevailing at any

given time is so much a product of the whole history of

both growth and limitation of federal court jurisdiction

since the first judiciary act, | Stat. 73, they have always

been interpreted in light of that history 2nd in the

axiom that clear statutory mandates must exist to found

jurisdiction.”

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10

Another interpretation of paragraph 6 of the former Section

3731, urged by the Government was that the court should

examine the effect of a dismissal order rather than the reason for

its.entry. The Court states, in answer to that proposal, that such

interpretation would include almost all dismissals prior to trial.

The court then goes on to state that they did not believe such a

broad reading was intended by Congress. Further, the court

makes it clear that it believes that such a broad reading of the

words in Section 3731 would violate the long-standing principle

that the act should be strictly construed against the Govern-

ment’s right to appeal. Citing United States v. Sisson, 399 U.S.

267, 270, 286, 291, 90 S. Ct. 2117, 26 L. Ed. 2d, 608 (1970);

Carroll, supra, at 394; 400, 406; United States v. Borden Co.,

308 U.S. 188, 192, 60 S. Ct. 182, 84 L. Ed. 181 (1939). The

court then goes on to affirm that,

“An objection to the local board’s classification of a

registrant. can be raised as a defense to a prosecution

under 50 U.S.C. App. Section 462. The Selective Service

Act, 50 U.S.C. App. Section 460(b)(3) provides that all

questions relating to judicial review of the classification

and processing by a board be reviewed in this manner.

The motion in the instant case presented questions

concerning Ponto’s classification, which are raised only

by defense. This decision to dismiss by the district judge

was based on questions presented by his defense. As

such, it was a ruling on the merits on the defense.”

Ponto, supra, at 663.

In addition, the court goes on to assert that the defense raised

by the motion in the district court could well have been decided

at trial. However, it points out that a defense on the merits can

just as well be decided prior to trial. It goes on to state that

Rule .12(b)(1) of the Federal Rules of Civil Procedure clearly

allows a party to present a Motion to Dismiss prior to trial

based on a defense “which is capable of determination without

trial of the general issue ...”, the court then found that the

Motion to Dismiss as ruled upon by the district court fits into

as

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that category. The court States, in conclusion, that the dismissal

order was a determination on the merits and, as such, was an

acquittal to which jeopardy attached.

“Thts, Government appeals from this ruling would

violate the double jeopardy clause of the Fifth Amend-

ment since a retrial on the charge would be prohibited.””’

For these reasons, the court dismissed the appeal for lack of

jurisdiction.

In reconsidering Grochowski, supra, the same conclusion was»

reached. And, in a case heard on the same dates as the decision

onrehearing of Ponto and Grochowski, namely United States v.

Gustavson, 454 F. 2d 677 (7th Cir., 1971), a case in which the

defendant was indicted for refusal to submit to induction and

prior to trial the district court granted the defense counsel’s

Motion to Dismiss the Indictment the Government appeal to

the Court of Appeals was dismissed for lack of jurisdiction.

In the United States v. Weller, 466 F. 2d 1279 (9th Cir.,

1972), the identical question was reviewed and decided. Here,

again, the indictment for refusal to submit to induction was

dismissed. The court affirmed that the decision to dismiss by

the district court was not based upon any defect in the indict-

ment or in the institution of the prosecution, but rather was

based solely upon the validity of a Selective Service regulation

barring the appearance of counsel before a local board. It

further stated that the issue which was raised was in the nature

of a defense to the crime charged and because of this, the Court

of Appeals did not have jurisdiction to hear and determine the

appeal under 18 U.S.C.A. Section 3731, especially in light of

interpreting the statute with an eye to its legislative history.

These cases cited above relate to interpretations of the statute

before the amended statute which would be applicable in this

case. However, many of the circuits have interpreted the ques-

tion at hand in this case with the history of the statute in mind

and the decisions. under the prior section of the Criminal

Appeals Act serve great aid in guiding decisions based on the

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7

12

new statute. At any rate, even given the fact that the prior

holdings relating to the statute as it formerly existed should be

used as a guideline in determining the meaning of the statute,

there is a clear conflict in the decisions by different circuit

courts of appeal on this issue. In the United States v. Roth-

felder, 474 F. 2d 606 (6th Cir., No. 72—148, Supreme Court,

cert. denied, 1973), the Sixth Circuit also followed the holdings

in Findley, supra, Ponto, supra, and Weller, supra, in holding

that where the district court in dismissing the indictment

considered evidence in the registrant’s Selective Service File, the

judgment of the district court in dismissing the indictment was,

in effect, an acquittal and the Government did not have a right

to appeal under 18 U.S.C.A., Section 3731. In United States v.

Velazquez, 482 F. 2d 139 (2nd Cir., 1973) 18 U.S.C.A. Section

3731 was reviewed and decided. Although we feel there are

distinguishing factors in that case which would separate it from

the case at hand, the court determined that it had jurisdiction

to review the dismissal of the indictment. In United States v.

Pecora, 484 F. 2d 1289 (3rd Cir., 1973), the case relied upon

by the Third Circuit Court of Appeals in our case to determine

that there was jurisdiction to hear the appeal, the court con-

cluded that in that case where jeopardy had not attached at the

time of the pre-trial dismissal of the indictment, the Govern-

ment could appeal the dismissal. The distinguishing feature in

~ that case centers around a point set forth in the notes of the

Court of Appeals’ decision in this case. The court recognized

that there might be a distinction between the decision in United

States v. Hill, 473 F. 2d 759 (9th Cir., 1972) and Pecora. The

court states that it did not feel that this distinction made the

instant order appealable but did state that to the extent that

Aiton A ne aS

bound by Pecora.

The most telling question to be analyzed is the effect of the

change in the section in the subsequent effect of prior decisions

PAIS ABD RE OE AE ADEA LEAP LEE NEPAD PE ANNES

Pecora and Hill might be inconsistent, the court found itself —

LE IEEF! TRRCEEIH 6I RN Rie ES { Bike yw Waa OO ag Ay AINE AN a ATER INE IS AARON LE

13

based on the old section in helping us to determine the appeal-

ability of certain matters under the new. The amendment of the

Criminal Appeals Act section at hand became effective on

January 2, 1971 and it would clearly apply to the case at bar.

The argument was made in United States v. McCreery, 473 F.

2d 1381 (7th Cir., 1973) that the decisions based upon inter-

pretations of the prior statute cannot aid questions arising

under the new amendment. The court in response to this

position stated as follows:

“The Government does not contend this case is

factually distinguishable from Ponto. It correctly points

out that Ponto arose prior to the amendment of the

Criminal Appeals Act which became effective on

January 2, 1971, whereas the amended statute is ap-

plicable to this appeal. See 84 Stat. 1880, 1890. But our

decision in Ponto rested on two independent grounds,

one statutory and one constitutional. Assuming,

arguendo that the statutory analysis is not applicable to

the amended act, it is nevertheless perfectly clear that

the constitutional analysis in Ponto compelled the con-

clusion that the order of April 20, 1972 was an acquittal

from which the government may not appeal... The

Government’s arguments to the contrary merely restate

the reasoning of the dissenting opinion in Ponto which

was squarely rejected by the en banc majority. See 454

F. 2d at 667.”

In summary, the dismissal of the indictment here was based

on the merits and it is clear that jeopardy had attached. The

Court of Appeals erred in concluding to the contrary.

There is a clear conflict among the courts of appeal regarding

the construction and effect given to this section of the Criminal

Appeals Act. As set forth above, the Sixth, Seventh, Ninth and

under United States v. King, No. 72-2213, decided March 21,

1973 (C.A. 4) Fourth Circuits disagree with the decisions

rendered under jurisdiction of the Second and Third Circuits in

Velazquez, supra, and this case upon which the Third Circuit

Meo Se"

14

relied on its earlier decision in Pecora, supra, in deciding the

jurisdictional question. It is clear that final guidelines should be

given as to interpretation to be given to the Criminal Appeals

Act,

“Otherwise the courts and authorities must [continue

to] expend energy, not on the merits of dispute settle>

ment, but simply on 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.

Harry A. Dower

Boyd G. Hixson

Barry N. Mosebach

APPENDIX A

UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

“ No. 15229 Cr.

UNITED STATES OF AMERICA

; Vv.

DAVID EMERY SERFASS

APPEARANCES:

For the Government: S. John Cottone, Esq.

United States Attorney

James W. Walker, Esq.

Assistant United States Attorney

Post Office Building

Scranton, Pa.

For the Defendant: — Harry A. Dower, Esq.

First Valley Bank Building

Allentown, Pa.

Thomas Foley, Jr., Esq.

Connell Building

Scranton, Pa.

(15)

DIBPEE PEM THE ES A Bei On AR Tal

UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

No. 15229 Cr.

UNITED STATES OF AMERICA

Vv.

DAVID EMERY SERFASS

MEMORANDUM

David Emery Serfass is accused of having violated 50 U.S.C.

App. Section 462 by wilfully and knowingly failing to comply

with an order of his Local Board to submit to induction into

the Armed Forces of the United States. He has filed a motion to

dismiss the indictment, contending that he was denied due

process of law when the Board inadequately set forth its reasons

for denying a post-induction-order request to reopen his classi-

fication. This defense is properly raised by motion before trial,’

especially since none of the facts upon which its resolution

1Accord, United States v. Ponto, 7 Cir. 1971, 454 F. 2d 657, 663, 664

n.10, 665; United States v. Gustavson, 7 Cir. 1971, 454 F. 2d 677,678 &

n.4; United States v. Martinez, W.D. Pa. 1972, 350 F. Supp. 971, 972-73;

United States v. England, W.D. Mo. 1971, 348 F. Supp. 851, 853 n.1;

United States v. O’ Rourke, S.D. N.Y. 1972, 341 F. Supp. 622, 623 & n.1;

United States v. Seeley, D.R.I. 1969, 301 F. Supp. 811; see United States

v. Henry, E.D. La. ‘1972, 344 F. Supp. 1; United States v. Stewart, N.D.

> Cal. 1969, 306 F. Supp. 29, appeal dismissed, 1970, 396 U.S. 1066;

_ . United States v. Haffner, D. Hawaii 1969, 301 F. Supp. 828; cf. United

States v. Sisson, 1970, 399 U.S. 267, 325 & n.2, 326, 331—32 & n.6, 348

(White, J., with whom Burger, C.J., and Douglas, J., join, dissenting).

Contra, Unites States v. Shelly, E.D. Pa. 1971, 330 F. Supp. 1214; see

United States v. Sisson, 1970, 399 U.S. 267, 301 & n.55; United States v.

Ramos, | Cir. 1969, 413 F. 2d 743, 744 n.1; United States v. Winer, E.D.

~ Pa. 1971, 323 F. Supp. 604; United States v. Fargas, S.D. N.Y. 1967, 267

4 F. Supp. 452, 455~—57. See also United States v. Findley, 1 Cir. 1971, 439

§

{ F. 2d 970.

(16)

STE as 5 PTT PGT a RO RR BE RITE YAO CORRE A aig ete Sa pe Or ee tara

a naman

BNE ORG IO SOREL SILER LER TOE GELS IONE

ae ee * eS ae The eDiets ie A ORO Ai SPOON oO

17

depends is in dispute. Fed. R. Crim. P. !2(b)(1). Briefs have

been submitted and oral argument made with respect to de-

fendant’s motion. |

The material facts are derived from defendant’s affidavit in

support of his motion, from his Selective Service file, and from?

the admissions of counsel.*

On November 16, 1970, Serfass was mailed an order to

report for induction on December 1, 1970. Supervening events

resulted in a postponement of his scheduled induction date

until January 18, 1971. He requested the special form for

registrants seeking conscientious objector status on December ~

29, 1970. The completed form, supplemented by additional

material in support of his application, was returned tg,the

Board on January 8, 1971. Simultaneously, he asked that his

classification be reopened and that he be granted a courtesy

interview. He subsequently appeared before the Board on

January 13, 1971.

At oral argument on the motion to dismiss, defense counsel

and the Assistant United States re stipulated *that the

2See United States v. Sisson, 1970, 399 U.S. 267, 301—02 & nn. 55, 56;

United States v. Knox, 1969, 396 U.S. 77, 83 & n.7; United States v.

Covington, 1969, 395 U.S. 57, 60—61; United States v. Fargas, S.D. N.Y.

1967, 267 F. Supp. 452, 455—57.

3Although defendant has not waived his right to trial by jury, a defense

based upon an alleged procedural defect in the Selective Service classifica-

tion process is to be determined by the court. Fed. R. Crim. P. 12 (b) (4);

United States v. England, W.D. Mo. 1971, 348 F. Supp. 851, 853; United

States v. O’Rourke, S.D. N.Y. 1972, 341 F. Supp. 622, 627; accord, Cox

v. United States, 1947, 332 U.S. 442, 452—53; United States v. Ponto, 7

Cir. 1971, 454 F. 2d 657, 663; United States v. Ramos, | Cir. 1969, 413

F. 2d 743, 744 n.1; Martinetto v. United States, 9 Cir. 1968, 391 F. 2d

346; see United States v. Martinez, W.D. Pa. 1972, 350 F. Supp. 971, 973;

United States v. Seeley, D.R.I. 1969, 301 F. Supp. 811.

4A judicial admission need not be in writing if made in court during

counsel’s management of the litigation. 9 Wigmore, Evidence Section 2594

(3d ed. 1940). Furthermore, such admissions are effective in both civil and

criminal cases. 9 Wigmore, Evidence Section 2592 (3d ed. 1940); see, e.g.,

United States v. Harding, 10 Cir. 1972, 475 F. 2d 480,484.

18

information Which Serfass submitted to the Board establishes a

prima facie claim for conscientious objector status® based upon

late crystallization.

By letter dated January 14, 1971, defendant was notified

that the “‘Local Board considered your entire file at their

meeting on January 13, 1971, and unanimously agreed that

there was no change over which you had no control and decided

not to re-open your file.”’ This is the only statement of reasons

given by the Board in support of its decision.

Subsequently, he refused induction, and this prosecution

followed.

The enumerated facts indicate clearly that Serfass is entitled

to full consideration of his claim prior to assignment to combat-

ant training and service. Ehlert v. United States, i971, 402 U.S.

99, 103-04 & n.7, 107. Therefore, since the statement of

reasons given for refusing to reopen is sufficiently ambiguous to

be reasonably construed as a rejection on the merits,® thereby

prejudicing his right to in-service review,’ defendant’s motion

to dismiss the indictment will be granted.

Chief Judge

Middle District of Pennsylvania

Dated: July 16, 1973.

5See e.g., Thompson v. United States, 9 Cir. 1973, 474 F. 2d 323, 326.

©The courtesy interview given Serfass prior to the Board’s decision

would make such an interpretation particularly reasonable. United States

v. Ziskowski, 3 Cir. 1972, 465 F. 2d 480, 485 n.13. This is not a case in

which the Board’s formulation compels the inference that its decision is

based upon the jurisdictional limitation imposed by 32 C.F.R. 1625.2

(1971). United States v. Marabella, No. 15227 Criminal (M.D. Pa. April 5,

1973). Compare Ehlert v. United States, 1971, 402 U.S. 99, 100, with

United States v. Alioto, 1 Cir. 1972, 469 F. 2d 722, 726, and United

States v. Ziskowski, 3 Cir. 1972, 465 F. 2d 480, 484 & n.10.

7United States v. Folino, No. 72—1974 (3 Cir. June 29, 1973): United

States v. Ziskowski, 3 Cir. 1972, 465 F. 2d 480; accord, United States v.

Alioto, 1 Cir. 1972, 469 F. 2d 722; United States v. Shomock, 3 Cir.

1972, 462 F. 2d 338; cf. United States v. Kline, M.D. Pa. 1972, 354 F.

Supp. 931, 939-40 & n.17, aff'd without published opinion, 3 Cir. 1972,

474 F. 2d 1337. °

— re

a

Pia A OMAEL GS PRATER GAB Oa oh

’

APPENDIX B

UNITED STATES COURT OF APPEALS FOR THE

THIRD CIRCUIT

No. 73—1736

UNITED STATES OF AMERICA, APPELLANT

v.

DAVID EMERY SERFASS

(D.C. CRIMINAL NO. 15229)

Present: VAN DUSEN, ALDISERT and ROSENN, Circuit Judges.

JUDGMENT

ON APPEAL from the United States District Court for the

Middle District of Pennsylvania.

THIS CAUSE came on to be heard on the record from the

United States District Court for the Middle District of Pennsyl-

vania and was submitted on briefs under Third Circuit Rule

12(6).

Oi CONSIDERATION WHEREOF, It is now here ordered

and 2ujudged by this Court that the order of the said District

Ceurt filed July 16, 1973, be, and the same is hereby reversed

and the cause is hereby remanded to the District Court for trial

or other further proceedings in accordance with the opinion of

this Court

THOMAS F. QUINN,

Clerk

February 20, 1974

Certified as a true copy and issued in lieu of a formal mandate

on March 14, 1974.

Attest:

THOMAS F. QUINN,

Clerk

(19)

APPENDIX C

UNITED STATES COURT OF APPEALS FOR THE

THIRD CIRCUIT

No. 73—i736

UNITED STATES OF AMERICA, APPELLANT

v.

DAVID EMERY SERFASS

Appeal From United States District Court for the

Middle District of Pennsylvania

Submitted under Third Circuit Rule 12(6) December 19, 1973

Before VAN DUSEN, ALDISERT and ROSENN, Circuit Judges.

JAMES W. WALKER, ESQUIRE

for appellant

HARRY A. DOWER, ESQUIRE

BOYD G. HIXSON, ESQUIRE

Dower, Mackson, Hauff & Hettinger

for appellee ,

OPINION OF THE COURT

(Filed February 20, 1974)

+ ROSENN, Circuit Judge

(20)

—_ SSS RP SOG BAU AA VELL IAS bl LLL BEAD Ot CD IRAE RNY eA eg eae

;

i

sted od

This appeal is hopefully one of the last of a long series of

selective service cases involving the issue of whether an order to »

report for induction was invalid for failure of the local board to

reopen the registrant’s classification pursuant to a _ post-

induction order, request for conscientious objector status. Since

the district court of the Middle District of Pennsylvania dis-

missed the indictment, the defendant also raises on appeal the

issue of double jeopardy. Because we find the order of dismissal

is appealable, and the dismissal was improper in light of the

subsequent decision in Musser v. United States, 42 U.S.L.W.

3286 (U.S. November 13, 1973), we reverse.

The facts of this case are not in dispute. On November 16,

1970, Serfass was ordered by his local board to report for

induction on December |. He appeared on December | and

requested a delay in his induction in order that he could submit

additional medical evidence. The delay was granted, but on

December 18 he was again ordered to report for induction, this

time on January 18, 1971. On December 29, he visited his local

board and requested the form for conscientious objector

application, SSS—150. His form 150 was returned to the local

board on January 8, and on January 13 he received a courtesy

interview as he had requested. By letter dated January 14, the

board notified him that it had considered his entire file and

“unanimously agreed that there was no change over which you

had no control and decided not to re-open your file.” The

board also informed him that he was still obligated to report for

induction on January 18. No other reasons for the refusal to

reopen his file were given. On January 18, Serfass appeared at

the examining station and refused induction. This prosecution

followed under 50 App. U.S.C. § 462.

Before trial, Serfass moved for dismissal of the indictment on

the ground that the local board had denied him due process by

inadequately setting forth its reasons for denying his request to

reopen his classification and to grant him conscientious objector

Fr «

\ 22

‘

status. The district court granted this motion, relying on de-

fendant’s selective service file, his affidavit in support of his

motion which set forth that he had applied for conscientious

objector ‘status and had received from his local béard only the

January 14 letter denying him claim, and a stipulation of

- counsel that the information he sent to the board set forth a

prima facie conscientious objector claim based upon late

crystallization of beliefs.

‘On the basis of the law prevailing in this Circuit at that time,

the district court stated in its opinion:

The enumerated facts indicate clearly that Serfass is

entitled to full consideration of his claim prior to assign-

ment to combatant training and service. Ehlert v. United

States, 1971, 402 U.S. 99, 103-04 & n. 7, 107. There-

fore, since the statement of reasons given for refusing to

reopen is sufficiently ambiguous to be reasonably con-

strued as a rejection on the merits, thereby prejudicing

his right to in-service review, defendant’s motion to

dismiss the indictment will be granted. {Footnotes

omitted. ]

The footnote’ indicate that the court relied primarily upon

United States v. Ziskowski, 465 F.2d 480 (3d Cir. 1972), and

‘United States v. Folino, No. 72-1974 (3d Cir. June 29, 1973).

We first consider defendant’s contention that we have no

jurisdiction to hear this Government appeal from the district

court’s dismissal of the indictment. Resolution of this con-

tention turns upon our construction of the Criminal Appeals

Act, 18 U.S.C. §3731, which reads:

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 further

prosecution.

i

PPE PE LOEIIOG IEA ELE OLRL ATES MEENA s/t BP

5B AAPL LAE Na VS

23

** *

The provisions of this section shaii be liberally con-

strued to effectuate its purposes.

This version of the Act is applicable to all actions begun in

any district court after January 2, 1971, (84 Stat. 1890, 1893)

and therefore applies to the present action.

Actions brought prior to January 2, 1971, were governed by

an earlier version of the Criminal Appeals Act, the relevant

portion of which made a criminal! case appealable by the United

States to the court of appeals:

{[F]rom a decision o; judgment setting aside, or dis- ©

missing any indictment or information, or any count

thereof, except where a direct appeal to the Supreme

Court is provided by this section.

See United States v. Pack, 247 F.2d 168 (3d Cir. 1957).

Under this furmer version of the Act it is clear that no appeal ‘

by the United States would lie in the instant case. Appeals were

permissible only if the dismissal of an indictment was based

upon a defect in the indictment or in the institution of the

prosecution, rather than upon evidentiary facts outside the face

of the indictment which would possibly constitute a defense at

trial. See, ¢.g., United States v. Ponto, 454 F.2d 657, 663 (7th

Cir. 1971) (en banc); United States v. Findley, 437 F.2d 970

(Ist Cir. 1971).

The 1971 amendment to §3731, however, was clearly

intended to enlarge the Government’s right to appeal to include

all cases in which such an appeal would be constitutionally

permissible. Cases decided under the prior version of §3731 are

of little aid ir. determining appealability under the present

version. See United States v, Pecora, 484 F.2d 1289 (3d Cir.

1973).

In Pecora, we held appealable under the present version of

§3731 the district court’s pretrial dismissal of an indictment

based upon a stipulation of the facts upon which the indictment

was returned.

FE OS TN Ps ate venience mae

- 24

In discussing the appealability of the pretrial dismissal, we

indicated that absent the defendant’s waiver of his right toa

jury trial pursuant to Rule 23(a) of the Federal Rules of

Criminal Procedure, jeopardy does not attach until the jury has

been impaneled and sworn. We held that entering into the

Stipulation of facts “for the purpose only of attacking the

validity of the indictment did not constitute the waiver neces-

sary under Rule 23(a).”’ Therefore, we concluded, since jeop-

ardy had not attached at the time of the pretrial dismissal of the

indictment, the government could appeal the dismissal. United

States v. Pecora, 484 F.2d at 1292—93. We also rejected as

inconsistent with §3731 the contention that our holding would

discourage defense counsel from expediting procedure by

making pretrial motions for dismissal, and instead encourage

counsel to wait until the jury was sworn before making motions

for dismissal. 484 F.2d at 1289. See Fed. R. C::m. Proc. 12(b).

We believe the instant appeal is squarely controlled by United

States v. Pecora, supra. As in Pecora, the pretrial motion of

dismissal was based upon undisputed facts raising a legal issue

and the defendant did not waive his right to a jury trial.

3

a

q

x

2

;

Pe he pee

1 The district court in this case expressly found that the deféndant did

not waive his right to a jury trial. Not only were none of the procedures

required by Rule 23(a) complied with, but attached to the motion to

dismiss the indictment was a motion to postpone the “trial until after the

disposition of the motion on the merits. Cj. United States v. Wilson,

73-1444 (3d Cir., filed January 15, 1974) (opinion sur denial of panel

rehearing) (post-trial directed verdict of acquittal).

Pecora distinguished United States v. Hill, 473 F.2d 759 (9th Cir.

1972), which held unappealable the district court’s pretrial dismissal of an

indictment alleging the mailing of obscene advertisements. The dismissal

-| was on the ground that the stipulated materials were not legally obscene.

& Hill was distinguished on two grounds. First, the Court of Appeals in Hill

j did not determine whether the defendant had waived his right to a jury

3

LNT Sa ee Pe ee Peet

trial. Second, in Hill “‘evidence was actually entered into the record. The

+ district court determined the character of that evidence so it may be said

that jeopardy had attached.” We do not consider this second distinction

4

|

”

¥

PRM Oe OR

25

Although the instant dismissal was based upon the trial

court’s finding that the defendant had established a defense as a

matter of law, rather than upon the finding, as in Pecora, that

there were insufficient facts as a matter of law to support a

conviction, we see no significant constitutional difference

between the two situations. Both involved a determination as to

the legal sufficiency of certain facts, and in either case denial of

the motion to dismiss entitled the defendant to the jury trial

which he has not waived. We therefore hold that jeopardy did

not attach and the dismissal of the indictment in the instant

case was an appealable order.”

Il.

Our consideration of the merits of the Government’s appeal

requires a cursory review of the line of cases in this circuit upon

which the district court’s dismissal of the indictment was based.

At all pertinent times, the post-induction order reopening of a

registrant’s selective service classification by his local board was

governed by Regulation 1625.2, 32 CFR §1625.2, which pro-

vided that,

[T]he classification-of a registrant shall not be re-

opened after thé local board has mailed to such reg-

istrant an Order to Report for Induction . . . unless the

local board first specifically finds there has been a

change in the registrant’s status resulting from circum-

between Pecora and Hill to permit our holding the instant order unappeal-

able. To the extent that Pecora and Hill may be inconsistent, we are of

course bound by Pecora.

2 Accord: United States v. Martin Linen Supply, 485 F.2d 1143 (Sth

Cir. 1973); United States v. Brown, 481 F.2d 1035 (8th Cir. 1973).

Contra: United States v. Southern Railway Company, 485 F.2d 309

(4th Cir. 1973); United States v. Rothfelder, 474 F.2d 606 (6th Cir), cert.

denied, 413 U.S. 922 (1973); United States v. McCreery, 473 F.2d 1381

(7th Cir. 1973).

See also: United States v. Hill, 473 F.2d 759 (9th Cir. 1972),

distinguished by this court in Pecora. See note | supra. _

i

stances over which the registrant had no control.*

[Emphasis supplied. ]

In Ehlert v. United States, 402 U.S. 99 (1971), a registrant

who had submitted a post-induction order conscientious

objector claim refused induction after being notified by his

local board that,

{I]t had declined to reopen his classification because

the crystallization of his conscientious objection did not

constitute the “change in the registrant’s status resulting

from circumstances over which the registrant had no

control” required for post-induction notice reopening.

402 U.S. at 100. The Supreme Court affirmed the ensuing

conviction, rejecting the registrant’s claim that crystallization of

conscientious objection is a circumstance over which he had no

control. While agreeing that the language of the regulation was

“not free from doubt,” the Court regarded as controlling the

Government’s “plausible” and “consistently urged” interpreta- -

tion that the regulation-only applied to “objectively identifi-

able” and “extraneous” circumstances, 402 U.S. at 104, and

that reopening was not required for a change in beliefs.

Furthermore the Court held this interpretation to be a valid

timeliness rule, since the military already had procedures for

handling in-service conscientious objector claims, and post-

induction order claims could legitimately be decided by the

military forum-as long as claimants were not subject to combat-

ant training or service until their claims had been acted upon.

3 Regulation 1625.2, 32 CFR §1625.2 in pertinent part provided:

The local board may reopen and consider anew the classification of a

registrant ...upon the written request of the registrant... if such

request is accompanied by written information presenting facts not

considered when the registrant was classified, which, if true, would

_ justify a change in the registrant’s classification: ... provided ... the

classification of a registrant shall not be reopened after the local board

has mailed to such registrant an Order to Report for Induction (SSS

Form No. 250)...unless the local board first makes the finding that

there is a change in status resulting from circumstances over which the

registrant had no control.

sell icc

ER TSOEE PPLE CIRCE ALOE LE GON ET,

27

The Court held, however, that “a ‘no man’s land’ would be

intolerable,” 402 U.S. at 104 n. 7, and a conscientious objector

claimant must be given some opportunity to have his claim

heard on the merits, either by his local board or by the military,

whenever the change in his beliefs occured. The Court therefore

felt obligated to look at existing military procedures to deter-

mine whether the requirement that all claimants receive some

forum to present their claims was met in practice. Although

recognizing that the “somewhat inconsistent” military regula-

tions “‘contained formulations seeming to look the other way,”

402 U.S. at 106,* the Court relied upon a letter written by the

General Counsel of the Army which stated that present

practice, as well as. practice when the registrant had been order- |

ed to report for induction, permitted presentation to the

military of such post-induction order conscientious objector

claims, and that there was no possibility that late crystallizers

would find themselWwes without a forum in which to present

their claims. The Court accepted this statement, warning that if

a situation should arise “in which neither the local board nor

the military had made a full opportunity to present a prima

ee conscientious objector claim for determination under

stablished criteria, ...a wholly different case would be pre-

sented.”” 402 U.S. at 107. The Court concluded by stating that,

[Wle hold that the Court of Appeals did not mis-

construe the Selective Service regulation in holding that

4 The Court cited Army Regulation No. 635-20, 43:

a. Consideration will be given to requests for separation based on

bona fide conscientious objection to participation in war, in any form,

when such objection develops subsequent to entry into the military

service.

b. Federal courts have held that a claim to exemption from military

service under Selective Service laws must be interposed prior to notice

of induction, and failure to make timely claim for exemption con-

stitutes waiver of the right to claim... Requests for discharge after

entering military service will not be favorably considered when —

(1) Based on conscientious objection which existed, but which was

not claimed prior to notice of induction, enlistment or appointment.

OEE

F

3

*

5 e

PSLRA SIM * Zs : Oe

FLERE AI ONL DNL IE ESE RRP BIE EEN LE TIM

bl a

28

it barred presentation to the local board of a claiin that

allegedly arose between mailing of a notice of induction

and the scheduled induction date.

402 U.S. at 107—108.

United States v. Shomock, 462 F.2d 338 (3d Cir. 1972),

raised the question of whether Ehlert had overruled our

decision in Scott v. Commanding Officer, 431 F.2d 1132 (3d

Cir. 1970), and this court answered in the negative. The reg-

istrant had filed a post-induction order conscientious objector

claim and had refused induction after being informed by the

local board that the information hé had submitted did not

warrant reopening of his classification.

This court reversed the ensuing judgment of conviction. First, ©

we held, under Scott the local board was obliged to inform the

registrant of the basis for its denial of his claim, whether it was

for “lack of jurisdiction or some other technical reason or was a

decision based on the merits of Shomock’s claim.” 462 F.2d at

346. Furthermore, we held, Ehlert did not compel a different

result because in the case at hand there was doubt that the

registrant would in fact have received a full and fair hearing by

the military of his conscientious objector claim. First, this court

feared that the military might rely on AR 635-20 § 3(b)(2),°

not cited in Ehlert, to deny the registrant an in-service hearing

on the merits of his claim on the ground that his claim had

already been denied by the local board prior to induction.

Second, we noted that AR 635-20 4 3(b)(1) at the time the

registrant had refused induction and until August 15, 1970,

precluded on its face in-service review of conscientious objector

5 AR 635- 20, 4 3(b) provides:

... Requests for discharge after entering military service will nof be

favorably considered when -

*_**

(2) Based solely on conscientious objection claimed and denied by

the Selective Service System prior to induction.

This provision is quoted in United States v. Ziskowski, 475 F.2d 480, 485

© (3d Cir. 1972).

+

SPAR DEBRS RIT EIT Ren OTS SED

iahtiataaiain NE OR TETRA! EE TED De RN LAI

29

claims which arose before induction, even if the claim arose

after the registrant had received his induction notice.® This

court therefore did not consider persuasive a letter addressed to

it by the General Counsel of the Department of the Army

which apparently relied upon the amended version of 4 3(b)(1),

cited in Ehlert. The letter stated that Army practice was to

permit in-service review of post-induction order conscientious

objector claims which had been denied by a local board solely

because of late crystallization of beliefs.’

For both of these reasons, the military might have refused to

consider the registrant’s claim on the merits, even though the

local board might have rejected his claim by relying solely upon

Ehlert without reaching the merits of his claim. There was a

strong possibility, therefore, that the registrant had been placed

6 The provision had read as follows:

... Requests for discharge after entering military service will not be

favorably considered when —

(1) Based solely on conscientious objection which existed but was

not claimed prior to induction, enlistment, or entry on active duty for

training. [Emphasis supplied. ]

On August 15, 1970, the emphasized language was amended to read “‘prior

to notice of induction.’ The amended version was quoted Ehlert. See note

4 supra.

7? The relevant portions of the letter asserted the following:

If the appellant had entered the Army in May 1969 under circum-

stances where the Selective System actually considered and denied his

conscientious objector claim on the merits, he would not have beer

entitled to an in-service determination on the merits of his conscientious

objector claim.

If the appellant had entered the Army in May 1969 under circum-

stances where his local draft board merely refused to reopen his classifi-

cation because his asserted views crystallized subsequent to the receipt

of his induction notice, in the view of the Department of the Army

personnel responsible for administering the conscientious objector

claims of in-service members, he would have been entitled under Army

policy to an in-service determination on the merits of his conscientious

objector claim.

462 F.2d at 345 n. 17.

30

in the “no man’s land” condemned by Ehlert, with no opportu-

nity to have his post-induction order conscientious objector

claim considered on the merits. His induction order was there-

fore held invalid.

The same issue was presented in United States v. Ziskowski,

465 F.2d 480 (3d Cir. 1972). The registrant had filed a post-

induction order conscientious objector claim, and in response

had received, following an interview, a letter stating that,

It is the determination of the board that there has been

no change in your status resulting from circumstances

over which you had no control. Your classification has

not been reopened.

465 F.2d at 481. On the authority of Scott, supra, this court

reversed the ensuing conviction for refusing induction. We

distinguished Ehlert by noting that the local board in that case

had indicated that its refusal to reopen the registrant’s classi-

fication was based on its finding that crystallization of con-

scientious objector beliefs was not a circumstance over which

the registrant had no control. In the case before the court,

however, it was not clear whether the denial was for this reason

or for any. one of several other reasons. See 465 F.2d at

482-483.

Moreover, this court found “substantial support” for this

result from Ehlert itself. Relying on AR 635—2Q § 3(b)(2),® not

cited in Ehlert,:the court reasoned that even if the military

interpreted that regulation to bar only in-service review of claims

which had been denied on the merits by a local board,’ the

military might reasonably have construed the Board’s action as

to Ziskowski as having been a determination on the merits

precluding in-service review. Therefore Ziskowski would have’

been in the “no man’s land” which had been‘disapproved by

Ehlert. The local board might have denied his claim for pro-

8 See note 5 supra.

9 As noted in Ziskowski, this interpretation was later adopted ex-

plicitly. 465 F.2d at 485 n. 12.

,

EINE I A Pires

SERIA OR EL NINE LEI LILES OEE LR BLN EEE EG RS BIg BEE OE IO

O shy —

es ae agen “ sae ara ORION

31

cedural reasons, while the military, interpreting the local

board’s denial as having been on the merits, might have then

refused to consider his claim.

In United States v. Folino, No. 72—1974 (3d Cir., June 29,

1973), this court reversed a selective service conviction on the

authority of Ziskowski.

The Supreme Court appears to have placed an abrupt end to

this line of cases, however, by its recent per curiam decision in

Musser v. United States, 42 U.S.L.W. 3286 (U.S. November 13.

1973). That case involved the consolidated appeal by two

selective service registrants who had been convicted for refusing

induction after having their post-induction order conscientious

objector claims rejected by their local boards. One registrant

had received a letter from his board stating that the board “did

not specifically find there has been a change in status resulting

from circumstances over which you had no control.” The other

registrant had received a letter stating simply that the board

“found no ground for reopening your classification.”

Petitioners relied upon Ziskdwski, Shomock, and United

States v. Alioto, 469 F.2d 722 (1st Cir. 1972), a similar case.

The Supreme Court flatly rejected the reasoning of these cases.

In answering the argument that the military might consider the

local board’s refusal to reopen to have been on the merits when

it was in fact. procedural, the Court stated that Ehlert had held

that a local board was “without power” to rule on the merits of

a post-induction order conscientious objector claim, and

[flrom this it follows that in no event can a mere

refusal to reopen signify more than a recognition of lack

of power to do so; it cannot and does not bear any

significance as to the merits of a registrant’s claim.

* * *

|N]o matter what the board’s apparent motivations in

refusing to reopen the petitioner’s classification may

have been, the boards were simply without power to

reopen, and an expressed or unexpressed indication of

soar ~4 ck

eect NT |

32

the board’s views of the claims cannot be deemed a

denial of those claims on the merits.

As in Ehlert, the Court then turned “to a consideration of

whether ‘the conditions for the validity of such a rule... are

met in practice.” ’”» The Court noted AR 635-20, 4 3(b)(2),

which seemed to bar in-service review of a claim which had been

“claimed and denied” before induction.'° The Court stated

that,

While the critical word “denied” might arguably be

applied to a board’s refusal to reopen a classification, it

cannot be so applied to a refusal to reopen a classi-

fication based on a claim of conscientious objection

crystallizing after issuance of a notice to report, now

that Ehlert has made clear that such a refusal can only

be based on the board’s lack of power to reopen in such

a posture.

The Court also relied upon the letter written by the General

Counsel of the Department of the Army which we had con-

sidered in Shomock,"' and which stated that when a refusa! to

~

. . reopen by a local board is not based on the merits, the reg-

~ istrant could receive a full in-service hearing on the merits. The

__Court concluded that,

In the event that a local board in one way or another

manifests its views as to the sine

registrants’ claims, such expres

effect by the armed forces in~

conscientious objection request.

Mr. Justice Douglas, in dissent, pointed out that “(t]he

opinions summarily affirmed today conflict squarely, as the

Solictor General concedes, with decisions in the First, Second,

and Third Circuits.” Included in the list of cases that follows

this statement are Shomock, Ziskowski, and Folino. We agree

that these three cases are inconsistent with Musser and for that

reason are no longer the law.

must be given no

ewing an in-service

10 See note 5 supra.

11 See note 7 supra.

ity of late-crystallizing

Es AOI AE i AT

33

Musser was decided after the district court dismissed the

indictment in this case, and of course long after Serfass himself

refused induction. We must therefore decide whether Musser is

to be applied retroactively to registrants who refused induction

before the case was decided.

We have no hesitation in answering this question in the

affirmative. Musser did not announce any new principle of law.

Rather, the case, by relying on indications of military policy

which were already before us in Shomock and Ziskowski, held

that our interpretation of military policy in those cases was

incorrect; there was no danger that the registrants whose con-

victions we had reversed would have found themselves in a “‘no

man’s land.”

Furthermore, the two registrants whose convictions were

affirmed in Musser had refused induction in February 1969 and

January 1971, respectively. Serfass, as noted, refused induction

in January 1971. Musser appears to hold, therefore, that even at

the time Serfass refused induction, he would have been permit-

ted by military policy to obtain an in-service review of his

conscientious objector claim. He therefore cannot justify his

refusal of induction.on the ground that he faced the “tno man’s

land” of Ehlert, even though his local board did not explain

why it had denied his conscientious objector request.*?

The order of the district court granting the motion to dismiss

12 Ehlert was decided on April 21, 1971. Serfass refused induction after

Scott but before Ehlert. The Court in Musser implicitly held Ehlert

retroactive, however, since it interpreted Ehlert as requiring the affirmance

of two convictions for refusing induction, even though both acts had taken

place before Ehlert was decided.

We note that since neither conviction affirmed by the Court in

Musser involved a refusal of induction in a circuit in which the prevailing

case law was at the time clearly contrary to Ehlert, the Court did not

necessarily decide whether actual good faith reliance on pre-Ehlert case

law might negate the element of willfulness necessary to sustain a convic-

tion. See, e.g., United States v. Mercado, 478 F.2d 1108 (2d Cir. 1973).

4

34

the indictment will be reversed. The case will be remanded to

that court for trial or other proceedings consistent with this

opinion.