Brief for the United States — Serfass v. United States
Supreme Court brief1975
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INDEX
Page
Opinions below = 1
IE sg 1
Question presented 2
Constitutional provision and statutes involved_. 2
Statement . : as 3
Summary of Argument ee 8
Argument — one aeak enn 12
I. The Criminal Appeals Act authorizes
an appeal to a court of appeals from
any pretrial order dismissing an in-
dictment _ 12
II. The Double Jeopardy Clause does not
bar an appeal from a Laine dismis-
sal of an indictment . eee 19
A. Jeopardy does not attach in pre-
trial proceedings _ ne 20
B. Allowance of government snicisls
from pretrial dismissal orders is
consistent with the purposes of the ©
Double Jeopardy Clause 29
C. Petitioner has advanced no con-
vincing arguments for overruling
the well settled principle that jeop-
ardy does not attach until a trial
has commenced _....- 32
Conclusion 51
Il
CITATIONS
Cases: . . Page
Ashe v. Swenson, 397 U.S. 436... -——ss«42, 48
Collins v. Loisel, 262 U.S. 426 ___—-20, 28, 42
Davis v. United States, 411 U.S. 233... 50
Ehlert v. United States, 402 U.S. 99... 5
Gori v. United States, 367 U.S. 364 51
Green V. United States, 355 U.S. 184_9, 29, 35, 36
Illinois v. Somerville, 410 U.S. 458 _. 47, 51
Kepner v. United States, 195 U.S. 100... 12, 24
4 Musser v. United States, 414 U.S. 31. 5, 7
; Palko v. Connecticut, 302 U.S. 319... 42
3 Partmar Corp. v. Paramount Corp., 347
U.S. 89 - 43
Patton v. United States, 281 U. Ss. 276 31.
3 Schwegmann Brothers v. Calvert Distill-
4 ers Corp., 341 U.S. 384 _ : 17
4 Simmons v. United States, 142 U.S. 148. 51
q Thompson v. United States, 155 USS.
a 271 51
4 United States v. Adams, 281 U.S. 202. 42
i United States v. Apex Distributing Co.,
: 270 F. 2d 747. 14
i United States v. Barber, 219 U.S. 72. . 22, 41
- United States v. Blue, 384 U.S. 251. 22
3 United States v. Brewster, 408 U.S. 501 28
3 United States v. Brown, 481 F. 2d 1035. 19, 35
: United States v. Celestine, 215 U.S. 278 - 22
4 United States v. Covington, 395 U.S. 57 22, 26
United States v. DiStefano, 464 F. 2d
845 14
United States \ v. . Findley, 439 F. 2d 970. 14, 27
28, 49
3 United States v. Fruehauf, 365 U.S. 146 38
q United States v. Goldman, 277 U.S. 229. 22, 41
RR IRE ORIENA RS EDIT IO EEA IEE WS IIE? BPRS ILS SEARLE RS LL ONL ID Ie OE
Cases—Continued Page
~ United States v. Goldman, 277 U.S. 229 41
: United States v. Halseth, 342 U.S. 277 yore
- United States v. Hark, 320 U.S. 531 --—s- 21-22
United States v. Hill, 473 F. 2d 759 ____ 38, 40,
| 42, 43
United States v. Jorn, 400 U.S. 470 27, 29, 30,
42, 47, 50
” United States v. Jenkins, 490 F. 2d 868,
P certiorari granted, May 28, 1974. —— 19,27
United States v. Kepner, 195 U.S. 100. 42
United States v. Lewis, 492 F. 2d 126 _. 34
United States v. Marion, 404 U.S. 307. . 41
United States v. Martin Linen Supply
Co., 485 F. 2d 1143, certiorari denied,
February 19, 1974, No. 73-743 __ 19, 34-35
United States v. McCreery, 473 F. 2d
ME .282 5 34
United States v. Moon, 491 F. 2d 1047_ 50
United States v. Murdock, 284 U.S. 141. yo
United States v. Oppenheimer, 242 USS.
ees Lonalsnnenanenen end, 09, 40, 41, 42
_ United States v v. . Pecora, 484 F. 2d 1289 = 6, 18
’ United States v. Ponto, 454 F. 2d 647, re-
hearing en banc, 454 F. 2d 657 14, 33, 35, 36,
437, 38; 40, 41, 42, 43, 46
United States v. Rabinowich, 238 U.S.
2 pits ane ne Cala oe 22, 41
United States v. Rothfelder, 474 F. 2d
606, certiorari denied, 413 U.S. 922. 19, 34
United States v. Sisson, 399 U.S. 267_. 14, 21, 24,
25, 26, 27, 28, 35, 47
United States v. Southern Railway Co.,
485 F. 2d 309 . : . 19, 34
United States v. Taylor, 207 US. 120. 25
2 BOLI CLO EEE I CERNE EE OAD AA BAA
Cases—Continued Page
United States v. Velazquez, 490 F. 2d 29,
petition for a writ of certiorari pending,
No. 73-6493 _......__.____ 28, 34, 44, 45, 46, 48
United States v. Walker, 489 F. 2d 1353. 19, 37
United States v. Williams, 491 F. 2d
|b 2 5; ee eee meena er 37, 38
United States v. Zisblatt, 172 F. 2d 740,
appeal dismissed, 336 U.S. 9384. -——s« 23, 14
Wade v. Hunter, 336 U.S. 684 51
White v. United States, 377 F. 2d 948 _. 41
Constitution, statutes, regulations, and rules:
United States Constitution:
Fifth Amendment _ i Fe
Criminal Appeals Act, 18 USC. (1964
ed.) 3731 13, 14, 21, 22, 23-24, 28
Criminal Appeals Act, 18 U.S.C. 3731, as
amended by the Omnibus Crime Control
and Safe Streets Act of 1970, 84 Stat.
1890 | 2, 3, 5, 6, 7, 8, 12, 16, 17, 18, 19
18 U. S.C. 3771 | pees eset eens 50
50 U.S.C. App. 462(a) eres 3
Army Regulation 635-20 Section 3: b( 2) 5
Federal Rules of Criminal Procedure:
TS ¢ Se ee oe eN _ 26, 31
0: eee eee e 31
WT ann 26
Miscellaneous:
ALI, Restatement of the Law of Judg-
ments (1942):
CE ee Ee ne eee 41
2 Ones enone ee 43
Vv
Miscellaneous—Continued Page
Friedland, Double Jeopardy (1969) 32
H. Conf. Rep. No. 91-1768, 91st Cong., _
2d Sess... 18
Kirks, “J eopardy” During The . Period oO f
The Year Books, 82 U. Pa. L. Rev. 602
(1934) 36
S. Rep. No. 91-1296, 91st Cong., 2d Sess... 8, 15,
17, 18, 27
MMR AEE te S08
IN THE
Supreme Court of the United States
OCTOBER TERM, 1973
No. 73-1424
DAVID EMERY SERFASS, PETITIONER
Vv.
UNITED STATES OF AMERICA
ON WRIT OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE THIRD ‘CIRCUIT
BRIEF FOR THE UNITED STATES
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. 20-
34) is reported at 492 F.2d 388. The opinion of the
district court (Pet. App. 16-18) is not reported.
JURISDICTION
The judgment of the court of appeals was entered
on February 20, 1974. The petition for a writ of
(1)
2
certiorari was filed on March 22, 1974, and was
granted on April 22, 1974. The jurisdiction of this
Court rests upon 28 U.S.C. 1254(1).
QUESTION PRESENTED
Whether the Double Jeopardy Clause bars an ap-
peal by the United States from an order, entered
prior to the empanelling of a jury, dismissing an
indictment on the basis of a legal ruling by the dis-
trict court after examination of records and affidavits
setting forth the evidence to be adduced at trial.
CONSTITUTIONAL PROVISION AND
STATUTES 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
ow ime.* * *
18 U.S.C. 3731 provides, in pertinent part:
In a criminal case an appeal by the United
States shall lie to a court of appeals from a de-
cision, 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.
* * * *
3
The provisions of this section shall be liberally .
construed to effectuate its purposes.
STATEMENT
On October 11, 1972, a grand jury empaneled in
the United States District Court for the Middle Dis-
trict of Pennsylvania returned an indictment charg-
ing petitioner, David Emery Serfass, with wilfully
failing to report for induction into the Armed Forces, .
in violation of 50 U.S.C. App. 462(a). Prior to trial,
petitioner moved to dismiss the indictment on the
ground that the local board had failed to state ade-
quate reasons for its refusal to reopen petitioner’s
classification to consider a post-induction-order claim ©
for treatment as a conscientious objector (App. 2-5).
The district court granted the motion (Pet. App.
15-18), and the United States appealed to the court
of appeals under the Criminal Appeals Act, 18 U.S.C.
3731, as amended by the Omnibus Crime Control and
Safe Streets Act of 1970, 84 Stat. 1890. The court
of appeals rejected petitioner’s claim that an appeal
was barred by the Double Jeopardy Clause. On the
merits, the court of appeals reversed the order dis-
missing the indictment and remanded the case for
trial or other further proceedings in accordance with
its opinion (Pet. App. 25-34; App. 19).
1. The material facts are not in dispute. On De-
cember 18, 1970, petitioner was ordered to report for
induction on January 18, 1971 (App. 7). After re-
ceiving the order, petitioner filed an application for
classification as’ a conscientious objector. On Jan-
4
uary 14, 1971, after an interview with the local
board, petitioner was advised that the local board
had considered his entire file at their meeting the
previous day and that they had agreed unanimously
“that there was no change over which you had no
control” and that it had therefore “decided not to re-
open your file’ (App. 9). On January 18, 1971, pe-
titioner failed to report for induction as ordered.
The present indictment followed.
2. Prior to trial, peticioner filed two motions. Pe-
titioner moved to dismiss the indictment on the
ground that the local board did not state adequate
reasons for its failure to reopen his classification
(App. 2-3). At the same time, petitioner moved “to
postpone the trial of the within matter which is now
scheduled for January 9, 1973, for the reason that a
_ Motion to Dismiss has been simultaneously filed and
_ the expeditious administration of justice will be served
best by considering the Motion prior to trial’ (App.
2); ,
On January 5, 1973, the district court’ granted the
motion to postpone the trial (App. 11), and ordered
that oral argument on the motion to dismiss be heard
on February 6, 1973 (App. 12). After hearing oral
argument, the district court entered an order, which
was complied with, directing the parties to submit
+ a copy of petitioner’s Selective Service File (App.
13). On July 16, 1973, the district court ordered that
__ the indictment be dismissed (App. 15). After setting
- out the material facts, which were “derived from de-
) fendant’s affidavit in support of his motion, from his
:
<= ye
De al es oy.
=. » »
Sees iab ANCA ee DRE BR
Bae paws Aes
nn tnt dS
5
Selective Service file, and from the admissions of
counsel” at oral argument to the effect that “the
information which Serfass submitted to the Board
establishes a prima facie claim for conscientious ob-
jector status based upon late crystallization” (Pet.
App. 17-18), the district court held that petitioner
was “entitled to full consideration of his claim prior
to assignment to combatant training and service.
Ehlert v. United States, 1971, 402 U.S. 99, 103-64 and
n. 7, 107” (Pet. App. 18). Since “the statement of
reasons given for refusing to reopen [was found to
be] sufficiently ambiguous to be reasonably construed
as a rejection on the merits, thereby preiudicing
[petitioner’s] right to in-service review,” the district
court granted the motion to dismiss the indictment
(Pet. App. 18).*
_ 8. The United States appealed pursuant to the
Criminal Appeals Act, 18 U.S.C. 3731, as amended by
the Omnibus Crime Control and Safe Streets Act of
1970, 84 Stat. 1890. The court of appeals unani-
mously rejected petitioner’s claim that it was without
jurisdiction to hear the appeal and reversed the order
of the district court on the merits. Speaking to the
issue of appealability, the only issue raised by the
1The concern of the district court—that petitioner’s right
to in-service review would be prejudiced by the local board’s
rejection of his claim—was apparently based upon Section
3.b(2) of Army Regulation 635-20, which states that in-
service claims for conscientious objector treatment will not
be considered favorably when “based solely on conscientious
objection claimed and denied by the Selective Service System
prior to induction.” See Musser v. United States, 414 U.S. 31.
i aS,
6
‘
petition for a writ of certiorari, the court of appeals
found that cases construing the old Criminal Appeals
Act to preclude an appeal in similar circumstances
were inapposite. It held that “[t]he 1971 amendment
to § 3731 * * * was clearly intended to enlarge the
Government’s right to appeal to include all cases in
which such an appeal would be constitutionally per-
missible” (Pet. App. 28). Accordingly, it concluded
that “[c]ases decided under the prior version of
§ 3731 are of little aid in determining appealability
under the present version” (ibid.).
Moreover, relying on its earlier opinion in United
States v. Pecora, 484 F.2d.1289 (C.A. 3), the court
of appeals also held that an appeal in this case was
not barred by the Double Jeopardy Clause. In Pecora,
the court of appeals, discussing the appealability of
a pretrial dismissal, held that “absent the defendant’s
waiver of his right to a jury trial pursuant to Rule
23(a) of the Federal Rules of Criminal Procedure,
jeopardy does not attach until the jury has been im-
paneled and sworn” (Pet. App. 24). Although Pecora
involved a pretrial dismissal based upon a stipulated
statement of facts “raising a legal issue,” the court
of appeals found that there was no meaningful dis-
tinction between the situation here and that in Pecora
(Pet. App. 24-25):
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
agi
support a conviction, we see no significant con-
stitutional 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 de-
fendant 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.
Turning to the merits, the court of appeals, relying
upon Musser v. United States, 414 U.S. 31, held that,
since the local board was without power to rule on
the merits of a post-induction-order conscientious
objector claim, petitioner’s right to in-service review
of his late crystallization claim was not prejudiced.
Accordingly, the order dismissing the indictment was
reversed and the case remanded to the district court
“for trial or other proceedings consistent with this
opinion” (Pet. App. 31-34).
4. On March 22, 1974, a petition for a writ of
certiorari was filed, limited solely to the issue whether
the order of dismissal was appealable. Petitioner
contended that the construction of Section 3731, “as
applied by the Third Circuit Court of Appeals in this
case, has put the defendant, your Petitioner, in jeop-
ardy in violation of the clear import of the statute
itself and the United States Constitution” (Pet. 5).
Since there is a conflict among the courts of appeals
over the issue whether the Double Jeopardy Clause
permits an appeal from a pretrial order dismissing
an indictment on the merits, the United States did
cape Pi eR RRRRE SSR Es Te aig
ae Rh eas Bae
8
not oppose the petition for a writ of certiorari (Memo-
randum for the United States, pp. 12-13).
SUMMARY OF ARGUMENT
The Criminal Appeals Act, 18 U.S.C. 37381, pro-
vides for an appeal by the United States to the court
of appeals “from a decision, judgment, or order of a
district court dismissing an indictment * * * except
that no appeal shall lie where the double jeopardy
clause of the United States Constitution prohibits
further prosecution.” The statute, as it presently
reads, was enacted in 1971 and was intended to
“assure that the United States may appeal [to the
court of appeals] from the dismissal of a criminal
prosecution by a district court in all cases where the
Constitution permits” (S. Rep. No. 91-1296, 91st
Cong., 2d Sess., pp. 2-3). Moreover; Congress ex-
plicitly indicated its intent that the United States
be permitted to appeal from pretrial dismissals of
indictments in selective service cases based on a
“finding that there have been errors by draft boards”
(id. at 14).
It is therefore clear that the appeal by the United
States to the court.of appeals in this case was proper
unless the Double Jeopardy Clause bars an ap-
peal from a pretrial order dismissing an_indict-
ment on the merits. Although petitioner had moved
for and obtained a continuance. of the trial pend-
ing the determination of his motion to dismiss the
indictment, and although it is undisputed that a
jury trial had not been waived and that petitioner
9
was not in jeopardy of conviction at the time the
motion to dismiss was granted, he argues “that be-
cause of the fact that the dismissal of the indict-
ment was the functional equivalent of an acquittal
‘on the merits, that constructively, jeopardy had at-
tached” (Br. 5). This claim rests upon misconcep-
tion of the history and language of the Double
Jeopardy Clause as well as the significant considera-
tions of policy that it reflects.
“The constitutional prohibition against ‘double
jeopardy,’” as this Court has held, “was designed
to protect an individual from being subjected to the
hazards of trial and possible conviction more than
once for an alleged offense”; it therefore prohibits
the state from making “repeated attempts to convict
an individual for an alleged offense, [and] thereby
subjecting him to embarrassment, expense and ordeal
and compelling him to live in a continuing state of
anxiety and insecurity, as well as enhancing the
possibility that even though innocent he may be found
guilty.” Green v. United States, 355 U.S. 184, 187-
188.
These considerations have led to the adoption of
the rule that a defendant has been placed in jeopardy
only upon the commencement of a trial before the
trier of fact. It is obvious, merely in stating the rule
and the considerations it reflects, that petitioner, who
was never tiied and who was never in jeopardy of
having a judgment rendered against him by the
trier of fact, cannot invoke the protection of the
Double Jeopardy Clause. Petitioner was not subject to
10
the “heavy personal strain which a criminal trial
represents for the individual” nor was he subject to
the “embarrassment, expense and ordeal’ of a trial.
Under these circumstances, every opinion of this
Court construing the Double Jeopardy Clause with
reference to government appeals has held that an
appeal will lie from a pretrial dismissal of an indict-
ment, regardless of whether the dismissal is based on
the sufficiency of the evidence or on some other
defense to the indictment (e.g., statute of limitations)
that has the effect of ending the case and exculpat-
ing the defendant. Like the English cases construing
the common law rule, from which the Double Jeopardy
Clause was derived, these decisions of this Court
implicitly reject the argument that there is any such
thing as the “equivalent of an acquittal’ when a
defendant has never been tried and placed in jeop-
ardy. Simply put, then, the decisions of this Court
uniformly support the proposition that petitioner
could not stave off the government’s appeal by rely-
ing on double jeopardy considerations when he has
yet to be placed in jeopardy at all.
Petitioner’s brief largely ignores the overwhelming
authority sustaining the right of the United States
to appeal from the pretrial order dismissing the in-
dictment here. The arguments he does advance are
derived principally from the opinions of some courts
of appeals which have held or suggested that the
Double Jeopardy Clause does not permit an appeal
from a pretrial order dismissing an indictment on the
merits. These cases have reached this ,conclusion
11
on various grounds, including (1) that jeopardy at-
taches to an acquittal, (2) that the doctrine of res
judicata, which is applicable to criminal as well as
civil proceedings, bars an appeal by a party from an
adverse judgment, (3) that the Double Jeopardy
Clause was intended to limit the number of times a
defendant may be required to submit proof of his
innocence and that the conduct of a pretrial hearing
on stipulated facts constitutes such an occasion, and
(4) that permitting an appeal from a pretrial order
will only encourage defendants to delay their motion
to dismiss until jeopardy has attached.
These theories are unsound as a matter of law
and policy and are inconsistent with holdings of this
Court and policies reflected by the Double Jeopardy
clause: (1) Jeopardy does not attach to an acquittal;
on the contrary, the acquittal (or conviction) ends
the jeopardy that attached upon the commencement
of trial. (2) The doctrine of res judicata bars a
sécond indictment only where the order dismissing
the first indictment has not been successfully ap-
pealed or set aside; res judicata has no bearing on
_Auestions of appealability. (3) The Double Jeopardy
~ Clause is applicable only where the defendant has
been put to trial before a trier of fact capable of
convicting him; the clause was plainly intended to
limit the number of times a defendant could be
tried for the same offense, but pretrial consideration
of a legal issue on the basis of stipulated facts simply
is not a trial. (4) Because the Double Jeopardy
ANU We aR) OR eT
12
Clause will not afford protection against a second
trial where a defendant has deliberately allowed him-
self to be placed in jeopardy and then voluntarily
asked the district court to terminate the trial on
grounds that could have been aetermined prior to the
time jeopardy attached, permiting an appeal from a
pretrial order will not encourage defendants to de-
lay their motions to dismiss until after jeopardy at-
taches. In any case, petitioner’s argument goes not
to the Double Jeopardy Clause but to the policy of the
statute and is thus foreclosed by Congress’s decision
to permit the appeal.
There are, therefore, no sound reasons to depart -
from the well established rule—going back to the
first holding of this Court to consider the issue “—that
the United States may appeal from any pretrial order
terminating a prosecution in favor of an accused.
ARGUMENT
I. THE CRIMINAL APPEALS ACT AUTHORIZES AN
APPEAL TO A COURT OF APPEALS FROM ANY
PRETRIAL ORDER DISMISSING AN INDICTMENT
The Criminal Appeals Act, 18 U.S.C. 3731, pro-
vides for an appeal by the United States to the court
of appeals “from a decision, judgment, or order of a
district court dismissing an indictment * * * except
that no appeal shall lie where the double jeopardy
clause * * * prohibits further prosecution.” This
explicit language, and the specific mandate of Con-
gress that “[t]he provisions of this section shall be
liberally construed to effectuate its purposes,” were
2 Kepner v. United States, 195 U.S. 100.
A
13
added by Congress in 1971 in order to.overcome the
restrictive construction that had been placed on the
pre-1971 version of the Criminal Appeals Act.
Prior to the 1971 amendments, Section 3731 au-
thorized an appeal to the court of appeals from “a
decision or judgment setting aside, or dismissing any
indictment * * * except where a direct appeal to the
Supreme Court of the United States is provided by
this section.” This provision was generally construed
.as authorizing appeals to the court of appeals only
from dismissals due to a defect in the indictment or
in the institution of the prosecution. The legislative
history of former Section 3731, which was said to
reflect a policy against permitting appeals in criminal
cases by the United States, was cited as justification
for ignoring what was acknowledged to be the plain
language of the old Criminal Appeals Act. See, e.y.,
United States v. Apex Distributing Company, 270
F.2d 747 (C.A. 9); United States v. DiStefano, 464
F.2d 845, 847 (C.A. 2).
Accordingly, it was held that the United States
could uot appeal to the courts of appeals from
pretrial orders dismissing indictments in cases in
which the district court had determined on the
basis of stipulated or undisputed facts that there
was a valid defense to the indictment, as well as
when the dismissal was for failure to prosecute or
was predicated on the failure of the United States
to comply with a discovery order. United States v.
14
Apex Distributing Company, supra, 270 F.2d at 751;
United States v. DiStefano, supra, 464 F.2d at 848;
United States v. Ponto, 454 F.2d 647 (C.A. 7);
United States v. Findley, 439 F.2d 970 (C.A. 1).
Since many of these orders could not be appealed
directly to this Court under the provisions of former
Section 3731 (see United States v. Sisson, 399 U.S.
242),° and since often, when such an appeal was
possible, the issue was not of sufficient importance to
justify review by this Court, Congress determined
to amend Section 3731 to “assure that the United
States may appeal [to the court of appeals] from the
j
:
7”
4
:
g
% The old Criminal Appeals Act, 18 U.S.C. (1964 ed.) 3731,
provided in part:
An appeal may be taken by and on behalf of the United
States from the district courts-direct to the Supreme
Court of the United States in all criminal cases in the
following instances:
From a decision or judgment setting aside, or dis-
missing any indictment or information, or any count
thereof, where such decision or judgment is based upon
the invalidity or construction of the statute upon which
: the indictment or information is founded.
4 From a decision arresting a judgment of conviction
for insufficiency of the indictment or information, where
such decision is based upon the invalidity or construc-
tion of the statute upon which the indictment or informa-~
tion is founded.
From the decision or judgment sustaining a motion
in bar, when the defendant hag not been put in jeopardy.
* * *
Brose SPpetai Ney
ee)
15
dismissal of a criminal prosecution by a district court
‘in all cases where the Constitution permits.” S. Rep.
No. 91-1296, 91st Cong., 2d Sess., pp. 2-3.*
* Congress took particular notice of the manner in which
the old Criminal Appeals Act had been construed (id. at 5-6):
* * * [T]he Criminal Appeals Act, as interpreted to-
day, does not provide for an appeal by the United States
to any court in a large variety of cases where the dis-
missal is based on grounds having nothing to do with
any defect in the indictment, or the construction or in-
validity of the underlying statute. For example, if a
court issues an order for discovery, believed to be unau-
thorized, a court will dismiss the indictment if the prose-
cutor refuses to comply. There is at present no way
the prosecution can test the validity of that dismissal
and the underlying order. If a court dismisses an indict-
ment for lack of timely prosecution under the Federal
Rules, without finding a denial of the constitutional right
to a speedy trial, the Government has no right to appeal.
* * * Also, the statute, passed at a time when the range
of Federal prosecutions was considerably narrower, fails
to take into account the current necessity of reviewing
administrative records in connection with a criminal
prosecution—an outgrowth of the tremendous expansion
of administrative agencies, particularly the establishment
of the Selective Service System, since 1907. This has
given rise to situations which do not readily fit into
categories of pleadings recognized at the time the act
was first passed. :
16
In fact, Congress indicated specifically its desire
to provide for appeal in cases such as this (id. at 14):
The problems of appealability have recently be-
come especially serious in selective service cases
where judges have reviewed defendants’ selective
service files before trials and dismissed the in-
dictments after finding that there have been
errors by the draft boards. These are issues to
be determined by a judge, not a jury, and there
is no reason why they should not be subject to
appellate review. The question of whether ac-
tions such as those resulting in selective service
case dismissals are appealable to courts of ap-
peals, if appealable at all, is currently being liti-
gated. If it should be decided that such appeals
lie only to the Supreme Court, this will make it
difficult for the Government to take appeals in
a large number of selective service cases which
ought to be reviewed, because such decisions often
turn on special, narrow facts and thus are not
sufficiently important to warrant an appeal to
the Supreme Court. [Emphasis added. ]
The Criminal Appeals Act, as amended, plainly
carries out the expressed intention of Congress. Sec-
tion 3731 now provides, in pertinent part:
In a criminal case an appeal by the United
States shall lie to a court of appeals from a de-
cision, 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 pro-
secution. 7
.
17
The Act contains no exception precluding appeals
from dismissals on the merits that rest not upon the
sufficiency of the indictment alone, but upon facts
outside the indictment. In order to avoid just such
a narrow reading of the new act, similar to the
interpretation that had been imposed upon the old act
by judicial gloss, Congress specifically directed in
the new Section 3731 that “[t]he provisions of this
section shall be liberally construed to effectuate its
purposes.” As the Senate Judiciary Committee ob-
served, the “explicit expression of this intent’? was
added “in view of the restrictive judicial interpreta-
tions of congressional intent which have resulted from
the histories of the earlier versions of section 3731
despite strong indications in the debate on the 1907
act that it should be broadly interpreted” (S. Rep.
No. 91-1296, supra, at 18).° |
° We have reférred extensively to this Senate Report because
- the amendments to the Criminal Appeals Act, which were
enacted as part of the Omnibus Crime Control and Safe
Streets Act of 1970, 84 Stat. 1880, were drafted by the Sen-.
ate Judiciary Committee, and its “well considered and care-
fully prepared” report is particularly relevant in construing
Section 3731. See Schwegmann Brothers v. Calvert Distillers
Corp., 341 U.S. 384, 395-396 (Jackson, J., concurring). We
note, however, that while the amendments proposed by the
Senate Judiciary Committee were adopted without change by
the Senate, there was a modification made by the House-
Senate Conference Committee (H. Conf. Rep. No. 91-1768,
91st Cong., 2d Sess., p. 21).
The amendments to the Criminz] Appeals Act as proposed
by the Senate read as follows (S. Rep. No., 91-1296, supra,
at 1):
Except as otherwise ' expressly provided ty this sec-
tion, 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 or terminating a prosecution in favor of a
defendant as to any one or more counts, except that no
appeal shall lie from a Judgment of acquittal. [Emphasis
added. ]
The first and second italicized phrases were omitted alto-
gether by the House-Senate Conference Committee, and the
last phrase was modified so that the final version of the Act
authorized an appeal from “a decision, judgment, or order of
a district court dismissing an indictment or information as to
- one or more counts, but that no appeal shall lie in any case
in which the Double Jeopardy Clause of the United States
Constitution prohibits further prosecution.” No explanation
_ was given for the changes (H. Conf. Rep. No. 91-1768, supra,
‘4
p. 21), but it may be surmised that they were intended to
eliminate redundant. language and more clearly express the
intent of Congress. |
' The original version of the Act, providing that ‘no appeal
shall lie from a judgment of acquittal,” would have frustrated
_ the expressed intent of the Senate Judiciary Committee to
authorize appeals from pretrial dismissals of indictments
_ based upon the application of legal principles to undisputed
_ facts. The Committee also intended to authorize an appeal
_ from such dismissals even after jeopardy attached (S. Rep.
_ No. 91-1296, supra, at 11). These orders, however, had been
_ characterized as “acquittals” for the purpose of determining
their appealability under the old Criminal Appeals Act (see
| pp. 25-27, 34-35, infra), and accordingly there was a danger
; that the proviso ‘to the Senate version of the Act would have
heen construed to bar an appeal from such orders. The lan- :
' guage in the final version remedied that potential defect. Cf.
United States v. Pecora, supra, 484 F.2d at 1293-1294, u. 6.
">
19
Accordingly, the courts of appeals are virtually
unanimous in their agreement that the Criminal Ap-
peals Act was intended to authorize an appeal from
an indictment in all cases in which the Constitution
would permit an appeal.“ Moreover, while petitioner
initially argued that the construction placed on Sec-
tion 3731 by the court of appeals was “in violation
of the clear import of the statute” (Pet. 5), he has
now apparently abandoned that argument in the face
of the language and legislative history of Section
3731.
Il. THE DOUBLE JEOPARDY CLAUSE DOES NOT
BAR AN APPEAL FROM A PRETRIAL DISMISSAL
OF AN INDICTMENT
The principal issue raised here—in light of the
clear expression of congressional intent to permit gov-
ernment appeals in all cases in which the Constitu-
tion permits—is whether the Double Jeopardy Clause
bars an appeal by the United States from a pretrial
order of the district court dismissing an indictment
on the merits. Although petitioner had moved for and
_ obtained ‘a continuance of the trial pending the de-
termination of his motion to dismiss the indictment,
and although it is undisputed that a jury trial had
* United States v. Jenkins, 490 F.2d 868 (C.A. 2), certiorari
granted, May 28, 1974, No. 73-1513; United Statcs v. Martin
Linen Supply Co., 485 F.2d 1143 (C.A. 5), certiorari denied,
February 19, 1974, No. 73-743; United States v. Wallcer, 489
F.2d 1353 (C.A. 7); United States v.- Brown, 481 F.2d 1035
(C.A. 8). But cf. United States v. Southern Railway Co., 485
F.2d 309 (C.A. 4); United States v. Rothfelder, 474 F.2d 606
(C.A. 6), certiorari denied, 413 U.S. 922.
20
- not been waived and that petitioner was not in any
_ jeopardy of conviction at the time the motion to dis-
_ miss was granted, petitioner argues “that because of
_ the fact that the dismissal of ,the indictment was the
' functional equivalent of an acquittal on the merits,
_ that constructively, jeopardy had attached” (Br. 5).
This claim rests upon misconceptions of the history
and language of the Double Jeopardy Clause, which,
_ this Court has consistently held, does not come into
_ play until the defendant has actually been placed in
_ jeopardy by the empanelling of a jury (or, in non-
A
jury trials, by the commencement of receipt of evi-
dence). Moreover, petitioner’s position receives no
support from an examination of the significant con-
siderations of policy that the guarantee against being
“twice put in jeopardy” for the same offense is in-
tended to reflect.
A. Jeopardy Does Not Attach In Pretrial Proceedings
Fundamentally, our position in this case comes
down to a simple and, it seems to us, incontrovertible
proposition: a defendant who has never been placed
in jeopardy cannot avail himself of a claim of dowble
jeopardy to block a goverment appeal.
The law is settled that jeopardy does not attach
in pretrial proceedings that end in the dismissal of
an indictment. This is so even when the dismissal
is based on the insufficiency of the evidence or on a
defense to the indictment that has the effect of end-
ing the case and exculpating the defendant. In Col-
lins v. Loisel, 262 U.S. 426, Mr. Justice Brandeis,
21
speaking for a unanimous Court, set out the basic
rule from which this Court has never departed (id.
at 429):
The constitutional provision against double jeop-
ardy can have no application unless a prisoner
has, theretofore, been placed on trial. See Kep-
ner v. United States, 195 U.S. 100, 126. The
preliminary examination of one arrested on sus-
picion of a crime is not a trial; and his dis-
charge by the magistrate upon such examina-
tion is not an acquittal. Commonwealth v. Rice,
216 Mass. 480. People v. Dillon, 197 N.Y. 254,
256. Even the finding of an indictment, followed
by arraignment, pleading thereto, repeated con-
tinuances, and. eventually dismissal at the in-
stance of the prosecuting officer on the ground
that there was not sufficient evidence to hold
the accused, was held, in Bassing v. Cady, 208
U.S. 386, 391, not to constitute jeopardy.
This principle is reflected in numerous cases under
the old Criminal Appeals Act, pursuant to which the
United States could appeal directly to this Court
from, inter alia, a “decision or judgment sustaining
a motion in bar, when the defendant has not been
put in jeopardy” (18 U.S.C. (1964 ed.) 3731). Al-
though the “motion in bar” was never clearly de-
fined (see United States v. Sisson, 399 U.S. 267,
300), it was generally held to encompass a pretrial
order of the district court sustaining a defense to
an indictment—on the basis of facts outside the in-
dictment—the effect of which was “to end the cause
and exculpate the defendants.” United States v.
RMSE DOORLE
22
Hark, 320 U.S. 531, 536; United States v. Blue, 384
U.S. 251; see also United States v. Murdock, 284
U.S. 141; United States v. Halseth, 342 U.S. 277;
United States v. Covington, 395 U.S. 57, 59, n. 2.
Despite the fact that many of these pretrial orders
were, in effect, dismissals on the merits and, under
! petitioner’s analysis, ‘the functional equivalent of an
acquittal,” this Court repeatedly held that jeopardy
had not attached because the defendants had not
been put on trial. See, e.g., United States v. Celes-
tine, 215 U.S. 278, 283, holding that “[t]he defend-
_ ant in this case had not been put upon trial, there-
_ fore he had not been in jeopardy”; United States v.
- Blue, 384 U.S. 251, 253, holding that since the de-
_fendant “had not yet been brought to trial and put
in jeopardy when dismissal occurred * * * our juris-
_ diction under the statute is secure * * *.
”
Particularly significant, in view of petitioner’s re-
- liance on the contention that the order in this case
- was unappealable because it was the “functional
equivalent of an acquittal,” are the cases under
former Section 3731 that entertained —jurisdiction
over appeals from pretrial orders dismissing indict-
- ments on the ground that the statute of limitations
had run (United States v. Goldman, 277 U.S. 229;
United States v. Rabinowich, 238 U.S. 78; United
States v. Barber, 219 U.S. 72), even though such
_a pretrial dismissal on the merits has been charac-
terized as an “acquittal.” See United States v. Bar- .
ber, 219 U.S. 77, 48; United States v. Oppenheimer,
° watts AN i Nt OT
23
242 U.S. 85, 88. Indeed, in United States v. Zis-
blatt, 172 F.2d 740 (C.A. 2), appeal dismissed, 336
U.S. 934, the court of appeals held that an appeal
from a post-trial order of the district court that
dismissed an indictment on statute of limitations
grounds was not barred by the Double Jeopardy
Clause.’
* Speaking for the court, Judge Learned Hand wrote (172
F.2d at 743; footnotes omitted) :
* * * [T]he question becomes whether to reverse the
dismissal and enter a judgment of conviction upon the
verdict would violate the defendant’s constitutional
privilege. Had the trial judge directed a verdict, so that
it would have been necessary upon reversal to subject
the defendant to trial before a second jury, that would
be “double jeopardy,” but, although the Constitution
gives an accused person the benefit of any mistakes in his
favor of the first jury he encounters, whether it has
passed upon his guilt or not, it does not extend that
privilege to mistakes in his favor by judges. Indeed, were
the opposite true, all appeals from decisions in arrest of
judgment would be constitutionally futile because no
judgment of conviction could be entered when they were
reversed. So long as the verdict of guilty remains as a
datum, the correction of errors of law in attaching the
proper legal consequences to it do not trench upon the
constitutional prohibition.
Having concluded, however, that it was without jurisdic-
tion to hear the appeal because a direct appeal to this Court
was mandated by the “motion in bar” provision of former
24
Accordingly, it is settled law that, regardless of
the label attached to an order dismissing an indict-
ment, the Double Jeopardy Clause does not bar an
appeal where, as here, the order was entered prior
to trial and the error may therefore be corrected
without a retrial. Indeed, in Kepner v. United States,
195 U.S. 100, the case most frequently cited for the
proposition that the Double Jeopardy Clause bars an
_ appeal from an acquittal, the Court was careful to
i distinguish between appeals from acquittals ren-
' dered by a jury after a trial and appeals from pre-
' trial orders terminating prosecutions (195 U.S. at
_ 180-131):
It is, then, the settled law of this court that
' former jeopardy includes one who has been ac-
quitted by a verdict duly rendered, although no
judgment be entered on the verdict, and it was
found upon a defective indictment. The protec-
tion is not, as the court below held, against the
peril of second punishment, but against being
again tried for the same offense.
We are not here dealing with those statutes
which give to the Government a right of review
upon the steps merely preliminary to a trial and
before the accused is legally put in jeopardy, as
where a discharge is had upon motion to quash
or a demurrer to the indictment is sustained be-
fore jeopardy has attached. Such statutes have
_ Section 3731, the court of appeals certified the case to this
Court. The appeal was dismissed on the motion of the Solicitor
General solely on the ground that the statute did not authorize
an appeal from a pgst-jeopardy order. See United States v.
Sisson, supra, 399°U.S. at 306.
Vv
<P Ra. SORA RIESE HE
25
been quite generally sustained in jurisdictions
which deny the right of second trial where a |
competent court has convicted or acquitted the
accused. People v. Webb, 38 California, 467.
[Emphasis added. ]
See also United States v. Taylor, 207 U.S. 120, 127,
where, in an opinion by Mr. Justice Holmes, the
Court rejected a challenge to the right of the United
States to appeal from a pretrial order terminating
a prosecution in favor of the accused, indicating that
there is no constitutional appealability problem prior
to jeopardy:
If the Fifth Amendment has any bearing, the
_ act of 1907 [permitting an appeal] is directed
to judgments rendered before the moment of
jeopardy is reached. Kepner v. United States,
195 U.S. 100, 128. We think it is unnecessary
to discuss the question at length.
United States v. Sisson, 399 U.S. 267, upon which
petitioner principally relies, does not dictate a con-
trary result. There, unlike the instant case, the dis-
trict court entered a post-trial order, which it de-
nominated as an order “in arrest of judgment,” in
which it terminated the prosecution in favor of the
defendant. The determination in Sisson that the gov-
-ernment could not appeal from this order, because
it was “in fact an acquittal,” was predicated on the
fact that the order of the district court was “bot-
tomed on factual conclusions not found in the in-
dictment but instead made on the basis of evidence
adduced at the trial” (id. at 288). Accordingly, it
2
4
#
;
4
s
é
4
26
was held that the judge’s action could not be distin-
guished from a directed judgment of acquittal en-
tered notwithstanding a jury verdict of guilty under
Rule 29(b) of the Federal Rules of Criminal Proce-
dure (399 U.S. at 290) and that an appeal could
not be taken from such a post-jeopardy order.
Here, on the other hand, the criminal prosecution
was aborted prior to trial and before jeopardy at-
tached. Even under the definition of an acquittal in
Sisson—‘‘a legal determination on the basis of facts
adduced at the trial relating to the general issue of
the case * * *” (id. at 290, n. 19)—the district court
order here was not an acquittal. Since there was no
trial, the dismissal was not a legal determination on
“the basis of facts adduced at the trial.”
Indeed, the motion to dismiss in this case was gov-
erned by Rule 12(b) (1), rather than Rule 29. Rule
12(b) (1) provides:
Any defense or objection which is capable of
determination without the trial of the general
issue may be raised before trial by motion.
“A defense is thus ‘capable of determination’ if trial
of the facts surrounding the commission of the al-
leged offense would be of no assistance in determin-
ing the validity of the defense.” United States v.
Covington, 395 U.S. 57, 60 (emphasis added). Here
the district court (as distinct fromthe jury) had
jurisdiction to determine a “defense” based on a
claim that the local board improperly refused to re-
open petitioner’s classification; this was so precisely
27
because the claim was “capable of determination”
without a trial of “the facts surrounding the com-
mission of the alleged offense.” In contrast to Sisson,
where in order to determine the defense raised—
whether the defendant was improperly denied treat-
ment as a conscientious objector—the district court
was required to consider “Sisson’s testimony and de-
meanor at the trial” (399 U.S. at 301), here the facts
upon which the pretrial order was based were undis-
puted and did not involve “the trial” of any issue
of fact.
The “acquittal” rationale of Sisson is, therefcre,
plainly inapposite here (assuming arguendo that
Sisson’s conclusion that an appeal did not lie from
an “acquittal” was based on the Double Jeopardy
Clause *). Moreover, since the order in Sissun termi-
® The holding of the Court in Sisson was that the order was
an “acquittal” for the purpose of determining “this Court’s
jurisdiction over the appeal under 18 U.S.C., 3731 [1964 ed.].”
United States v. Jorn, supra, 400 U.S. at 478, n.7. See also
id. at 475-476; United States v. Findley, supra, 439 F.2d at 9738.
And it is plain from the legislative history of the 1971 amend-
ments to the Criminal Appeal Act that Congress intended
to overrule the construction that Sisson placed on former
Section 3731. (“One example of the kind of case which
-would thereby be made appealable is the Sisson case” (S.
Rep. No. 91-1296, supra, at 11)).
There is, as petitioner observes (Br. 8), also dictum in the
opinion in Sisson to the effect that the Double Jeopardy
Clause barred an appeal from the “acquittal” (399 U.S. at
290) even though the legal error could be corrected without
a second trial. But this language, as we have shown, would
not avail petitioner here, because it is limited to post-trial
‘“acquittals.” Indeed, in United States v. Jenkins, 490 F.2d
868 (C.A. 2), certiorari granted, May 28, 1974, No. 73-1513,
which involved a post-trial order similar to that in Sisson, and
28
nating the prosecuticn was a post-trial and post-
jeopardy order, it does not in any way undermine the
basic rule summarized by Mr. Justice Brandeis in
Collins v. Loisel, supra, 262 U.S. at 429, that “[t]he
constitutional provision against double jeopardy can
have no application unless a [defendant] has, there-
tofore, been placed [in jeopardy].” ’
where the Court of Appeals for the Second Circuit held that
the Double Jeopardy Clause barred an appeal, it expressly
left open the issue whether a similar result would apply to a
pretrial order dismissing an indictment on the merits (490
F.2d at 880). Subsequently, in United States v. Velazquez,
490 F.2d 29 (C.A. 2), petition for a writ of certiorari pending
(No. 73-6493), the court of appeals held that an appeal from
a pre-trial order similar to that in the instant case was not
barred by the Double Jeopardy Clause.
® United States v. Brewster, 408 U.S. 501, upon which peti-
tioner relies (Br. 9), is likewise inapposite because it dealt
solely with the issue whether “this Court has jurisdiction
nder 18 U.S.C. § 3731 (1964 ed., Supp. V) to review the Dis-
trict Court’s [pretrial] dismissal” of the indictment (408 U.S.
at 504-505). In resolving this issue, and in ultimately sus-
taining its jurisdiction to hear the appeal by the United States,
the Court in Brewster relied upon language in Sisson that,
-undér the former Section 3731, an appeal would not lie from a
dismissal “‘on the basis of facts that would necessarily be
tried with the general issue in the case” (399 U.S. at 301).
Since that portion of the opinion in Sisson was based solely
on the old Criminal Appeals Act, it is not relevant here. In-
deed, in United States v. Findley, supra, cited with approval in
Brewster (408 U.S. at 506) and relied upon by petitioner
(Br. 9-10), the First Circuit characterized the holding in
Sisson as follows (439 F.2d at 973):
Collectively we believe this [the rationale of Sisson] was
an approach not in terrns of double jeopardy, but in terms
of the kind of error section 3731 was intended to cover.
\
29
B. Allowance of Government Appeals From Pretrial
Dismissal Orders Is Consistent with the Purposes
of the Double Jeopardy Clause
A consideration of the nature and the purposes of
the Double Jeopardy Clause clearly establishes that
its objectives are fully consistent with the accepted
and long-standing constitutional precedents discussed
above permitting a government appeal in cases such
as this. .
The Double Jeopardy Clause was intended to pro-
tect an individual from being subjected to trial and
possible conviction more than once for the same of-
fense. A power “to subject the individual to repeated
prosecutions for the same offense,” as the Court held
in United States v. Jorn, 400 U.S. 470, 479, “would
cut deeply into the framework of procedural protec-
tions which the Constitution establishes for the con-
duct of a criminal trial. And society’s awareness of
the heavy personal strain which a criminal trial rep-
resents for the individual defendant is manifested in
the willingness to limit the Government to a single
criminal proceeding to vindicate its very vital interest
in enforcement of criminal laws” (emphasis added).
These considerations were summarized by Mr. Justice
Black in Green v. United States, 355 U.S. 184, 187-
188, where, writing for the Court, he observed:
The constitutional prohibition against ‘“dou-
ble jeopardy” was designed to protect an indi-
vidual from b2ing subjected to the hazards of
trial and possible conviction more than once for
an alleged offense. In his Commentaries, which
30
; greatly influenced the generation that adopted
4
the Constitution, Blackstone recorded:
“, . the plea of auterfoits acquit, or a
former acquittal, is grounded on this uni-
, versal maxim of the common law of Eng-
/ land, that no man is to be brought into jeop-
ardy of his life more than once for the same
offence.”
Substantially the same view was taken by this
Court in Ex parte Lange, 18 Wall. 163, at 169:
“The common law not only prohibited a
second punishment for the same offence, but
it went further and forbid a second trial
for the same offence, whether the accused ~
had suffered punishment or not, and wheth-
er in the former trial he had been acquitted
or convicted.”
The underlying idea, one that is deeply ingrained
in at least the Anglo-American system of juris-
prudence, is that the State with all its resources
and power should not be allowed to make re-
peated attempts to convict an individual for an
alleged offense, thereby subjecting him to em-
barrassment, expense and ordeal and compelling
him to live in a continuing state of anxiety and
insecurity, as well as enhancing the possibility
that even though innocent he may be found
guilty. [Emphasis added; footnotes omitted. ]
These considerations “have led this Court to conclude
that a defendant is placed in jeopardy in a criminal
proceeding once the defendant is put to trial before
the trier of the facts, whether the trier be a jury or
a judge.” United States v. Jorn, supra, 400 U.S. at
479.
Applying this basic rule, and the considerations
that led the Court to adopt it, it is plain that peti-
-
31
tioner here was not in jeopardy of conviction during
the hearing and determination of the motion to dis-
miss the indictment. Petitioner had yet to be tried
on the offense for which he was indicted. Since
neither he nor the United States had consented to
waive trial by jury, the district court was without
power under the Constitution to make any determi-
nation regarding petitioner’s guilt or innocence or to
conduct a trial on any disputed factual issue (Patton
v. United States, 281 U.S. 276, 312; see also Fed.
R. Crim. P., Rules 12 and 23).
Moreover, the hearing and determination of the
motion to dismiss cannot be characterized as a trial,
because there were no disputed issues of fact that
had to be tried or resolved. All of the material facts
were uncontroverted and established by petitioner’s
affidavit and by the documents (the authenticity of
which was not challenged) contained in his Selective
Service file. Petitioner admittedly failed to report
for induction as ordered; he concededly filed a post-
induction-order claim for treatment as a conscien- —
tious objector, and the local board concededly refused
to reopen his classification for the reasons stated in
the Selective Service File. The only controversy re-
solved by the district court was the purely legal issue
whether the allegedly improper manner by which the
local board declined to reopen petitioner’s classifica-
tion would constitute a defense to the indictment.
Under these circumstances, it is apparent that none
of the crucial policy consideration reflected by the
Double Jeopardy Clause are implicated here. Peti-
:
i
i
{
32
tioner was not subjected to the “heavy personal strain
which a criminal trial represents for the individual,”
nor was he subject to the “embarrassment, expense
and ordeal” of a trial. Moreover, there is no possi-
bility that, even though innocent, he has been sapped
of “‘the stamina or resources” effectively to face the
trial that the court of appeals directed here. See
_ Friedland, Double Jeopardy 4 (1969).”° Indeed, peti-
tioner’s motion to postpone the trial until the deter-
mination of the motion to dismiss shows clearly—if
any such showing is necéssary—that petitioner was
fully aware of the limited nature of the proceedings
involved in the hearing and determination of his mo-
tion to dismiss. There is, therefore, no basis for
petitioner’s claim that constructively “jeopardy had
attached.” |
-(C. Petitioner Has Advanced No Convincing Argu-
ments For Overruling The Well Settled Principle
That Jeopardy Does Not Attach Until A Trial Has
Commenced
~~Petitioner’s brief largely ignores the overwhelming
authority sustaining the right of the United States
to appeal from the pretrial order dismissing the in-
dictment here. The arguments he does advance are
principally derived from the opinions of some courts
1 Certainly there was far less of a “trial” here than is
frequently present when a heafing is held on a pretrial mo-
tion to suppress evidence, which often involves disputed issues
of fact and where the outcome of the hearing may well
determine whether there is going to be a trial. Yet it has never
been suggested that an appeal from the granting of such a
motion is barred by the Double Jeopardy Clause.
33
of appeals which have held or suggested that the —
Double Jeopardy Clause does not permit an appeal
from a pretrial order dismissing an indictment on
the merits. These cases have suggested, among other
things, (1) that jeopardy attaches to an acquittal;
(2) that the doctrine of res judicata, which is ap-
plicable to criminal as well as civil proceedings, bars
an appeal by a party from an adverse judgment;
(3) that the Double Jeopardy Clause was not in-
tended to limit the number of times a defendant may
be summoned into court on a single offense, but
rather the number of times he may be required to
submit proof of his innocence to challenge by the
prosecution; and (4) that permitting an appeal from
a pretrial order will only encourage defendants to
delay their motions to dismiss until jeopardy has
attached.
These theories are unsound as a matter of law and
policy, and their adoption to bar an appeal from the
pretrial order here would involve a repudiation of
virtually every ‘Yelevant opinion of this Court con-
struing the Double Jeopardy Clause.
a. The leading case supporting petitioner’s claim,
which has been followed by some courts of appeals
and rejected by others, is United States v. Ponto,
454 F.2d 657 (C.A. 7; rehearing en banc). There, as
here, the defendant was indicted for failing to report
for induction as ordered.. He moved to dismiss the in-
dictment prior to trial on the basis of a defense that
was supported by the undisputed facts contained in
his Selective Service File. The motion to dismiss was
34
granted, and the United States appeeled to the court ,
of appeals pursuant to the old Criminal Appeals Act.
* By a vote of 5 to 4, the Court of Appeals for the
Seventh Circuit construed the old Criminal Appeals
Act to preclude an appeal by the United States. The
plurality opinion, on behalf of three judges, alterna-
tively held that an appeal was barred by the Double
Jeopardy Clause (454 F.2d at 663-664) :
Since the dismissal order was based on a deter-
mination on the merits, it was an acquittal to
which jeopardy attached. United States v. Sis-
son, supra, 399 U.S. at 289-290, 90 S.Ct. 2117;
United States v. Ball, 163 U.S. 662, 16 S.Ct.
1192, 41 L. Ed. 300 (1896); Green v. United
States, 355 U.S. 184, 78 S.Ct. 221, 2 L. Ed. 2d
199 (1957); Helvering v. Mitchell, 303 U.S. 391,
398, 58 S.Ct. 630, 82 L. Ed. 917 (1938). See
United States v. Jorn, 400 U.S. 470, 479, 91 S.
Ct. 547, 27 L.Ed. 2d 543 (1971). Thus, gov-
ernment appeal from this ruling would violate
the double jeopardy clause of the Fifth Amend-
ment since a retrial on the charge would be pro-
hibited. Kepner v. United States, 195 U.S. 100,
*24 S.Ct. 797, 49 L.Ed. 114 (1904); United
States v. Ball, supra. We view this as an inde-
pendent ground for holding that the government
may not appeal in this case [footnote omitted ]."
" Accord: United States v. Southern Railway Co., 485 F.2d
309 (C.A. 4); United States v. Rothfelder, 474 F.2d 606 (C.A.
6); United States v. McCreery, 473 F.2d 1381 (C.A. 7);
United: States v. Lewis, 492 F.2d 126 (C.A. 5). Contra:
United States v. Velazquez, 490 F.2d 29 (C.A. 2). petition for
a writ of certiorari pending (No. 73-6493); United States v.
Martin Linen Supply Co., 485 F.2d 1143 (C.A. 5), certiorari
35
This analysis is based upon a number of erroneous
assumptions.
The suggestion that jeopardy ‘‘attaches to an ac-
quittal” is fundamentally inconsistent with every de-
cision of this Court construing the Double Jeopardy
Clause. Indeed, in Green v. United States, 355 U.S.
184, 188, the Court spoke of an acquittal as “ending
a defendant’s jeopardy.” which, of course, had at-
tached upon the commencement of trial. United
States v. Sisson, supra, as we have shown, did not
_ hold otherwise. The dictum relied upon by the court
of appeals in Ponto merely states that an acquittal
entered after jeopardy had attached barred an ap-
peal. Moreover, as we have shown, the Double Jeop-
ardy Clause—-in which the word acquittal is nowhere
to be found—was “designed to protect an individual
from being subjected to the hazards of trial and pos-
sible conviction more than once for an alleged of-
fense” (Green v. United States, supra, 355 U.S. at
187), and this protection is afforded regardless -of
whether a defendant has been acquitted or convicted. .
Because jeopardy is deemed to attach upon the em-
panelling of a jury (or the taking of evidence where
a jury trial has been waived), rather than upon the -
return of a verdict, the Double Jeopardy Clause af-
fords protection against a second trial even where
the first trial did not end in an acquittal or convic-
tion, if it was terminated improperly prior to a
verdict.
denied, February 19, 1974, No. 73-7438; United States v. Brown,
481 F.2d 1035, 1041 (C.A. 8).
36
/ ceordingly, to the extent that an appeal from an
“acquittal” is barred by the Double Jeopardy Clause,
it is only where the “acquittal” has been returned
by the trier of fact, and a ruling against the defend-
ant on appeal would require a “retrial.” '° The point
was. emphasized in Green v. United States, supra,
cited by the court of appeals in Ponto, where it was
siated (355 U.S. at 188):
In accordance with this philosophy [underly-
ing the Double Jeopardy Clause] it has long
been settled under the Fifth Amendment that a
verdict of acquittal is final, ending a defend- |
ant’s jeopardy, ‘and even when “not followed by
any judgment, is a bar to a subsequent prosecu-
tion for the same offence.” United States v. Ball,
163 U.S. 662, 671. Thus it is one of the ele-
mental principles of our criminal law that the
Government cannot secure a new trial by means
of an appeal even though an acquittal may ap-
pear to be erroneous. United States v. Ball,
supra; Peters v. Hobby, 349 U.S. 331, 344-345.
Cf. Kepner v. United States, 195 U.S. 100;
United States v. Sanges, 144 U.S. 310.”
12 The English rule, from which the Double Jeopardy Clause
was derived, is to the same effect. [T]he common law plea
of autrefoits acquit was based on a verdict-ef a jury, and not
on th:2 ‘equivalent of-an acquittal.’ ” Kirk, “Jeopardy” During
The Period Of The Year Books, 82 U. Pa. L. Rev. 602, 603-
604 (1934). The English common law rule would permit
a retrial whenever the trial was terminated prior to verdict
regardless of the reason for termination.
13The other cases cited by the court of appeals (except
for the Sisson dictum) are likewise to the same effect.
37
While the court of appeals in Ponto recognized
that it is the prohibition against a “retrial” that
bars an appeal from a verdict of acquittal (it heid
that an “appeal from this ruling would violate the
double jeopardy clause * * * since a retrial on the
charge would be prohibited” (454 F.2d at 664)), it
completely ignored the fact that the defendant had
never been tried on the indictment and had never
been placed in jeopardy of conviction. A successful
appeal, therefore, could not have resulted in a “re-
trial.” Accordingly, Ponto was not only never in
jeopardy, as that term has been applied, but none
of the considerations of policy reflected by the Dou-
ble Jeopardy Clause, discussed above, were implicated
by the appeal taken by the United States from the
pretrial order dismissing his indictment.
It is not surprising, in light of these facts, that
the reasoning in Ponto, set out and discussed above,
did not command a majority of the court of appeals,”
and that it has been distinguished by recent cases
to the point where the Seventh Circuit recently in-
dicated that “the present viability of Ponto” is an
open question. United States v. Williams, 491 F.2d
1233, 1234 (C.A. 7); United States v. Walker, 489
F.2d 1353 (C.A. 7).*
4 Only three of five judges who formed the majority in
Ponto agreed that the Double Jeopardy Clause barred an
appeal because the order of dismissal was “an acquittal to
which jeopardy attached.”
*In Walker and Williams, the Court of Appeals for the
Seventh Circuit held that the rationale of Ponto was applicable
38
b. A second line of authority relied upon by peti-
tioner is represented by the concurring opinion in
United States v. Ponto, supra, and by United States
v. Hill, 473 F.2d 759 (C.A. 9). In Ponto, two of the
five judges concurred on the ground that “the order
of the district court appealed from was a dismissal
with prejudice and had the effect of barring a second
prosecution. White v. United States, 126 U.S. App..
D.C. 309, 377 F.2d 948 (1967); see United States v.
Oppenheimer, 242 U.S. 85, 87, 37 S.Ct. 68, 61 L. Ed.
161, 1916” (454 F.2d at 665).
Similarly, in United States v Hill, supra, which
involved an obscenity prosecution, the defendant
moved to dismiss the.indictment prior to trial on the
ground that the materials were not obscene. A pre-
trial “hearing” was held at which the defendants
to a pretrial order dismissing an indictment on the merits only
where the order, in effect, “sustained the merits of an affirma-
tive defense.” United States v. Walker, supra, 489 F.2d at
1335; United States v. Williams, supra, 491 F.2d at 1234, n.2.
The rationale was held to be inapplicable where the dismissal
of the indictment is based upon a stipulated set of facts in
which the government “reveals the facts it is prepared to
prove” (489 F.2d at 1356). Such a dismissal, the court of
appeals reasoned, was in effect a determination of the suf-
ficiency of the charge in the indictment and appealable (cbid.,
citing United States v. Fruehauf, 365 U.S. 146, 157-158).
While Walker and Williams are factually distinguishable
from Ponto on those grounds, it is difficult to rationalize the
distinction on the basis of the purpose of the Double Jeopardy
Clause and the policies which it reflects. We think it clear,
as the court of appeals held in the instant case, that there is
“no significant constitutional difference between the two sit-
- uations” (Pet. App. 25).
39
“introduced” into evidence.the allegedly obscene ma-
terials, along with materials (taken from the records
of other cases) that had previously been adjudicated
as not being obscene. The United States in turn
“offered” materials (taken from the record of yet
another case) that had been found to be obscene.
(See 473 F.2d at 760.) Although a jury trial had
not been waived and the district court was incapable
of entering a judgment of acquittal or conviction as
a result of the hearing, and although no issue of fact
was tried, the court of appeals held that appellate
review of the “pre-trial determination that the ma-
terials * * * were not obscene as a matter of law”
(473 F.2d at 760-761) could not be obtained by the
United States.
In so doing, it relied upon United States v. Oppen-
heimer, 242 U.S. 85. There, an indictment had been
dismissed on the ground that the charge was barred
by the statute of limitations. Subsequently, as the
result of an appeal by the United States from ‘a pre-
trial dismissal of an indictment in another case,” it
became clear that the dismissal of the indictment
against Oppenheimer had been erroneous. A new in-
dictment was then returned against Oppenheimer,
and he was convicted. On appeal, the conviction was
reversed on the ground that the prior dismissal of
-the indictment on the merits was res judicata and
barred a subsequent prosecution for the same offense.
1% United States v. Rabinowich, 238 U.S. 78.
40°
Speaking for the Court, Mr. Justice Holmes wrote
(242 U.S. at 87):
A plea of the statute of limitations is a plea
to the merits, United States v. Barber, 219 U.S.
72, 73, and however the issue was raised in the
formey case, after judgm2nt upon it, it could not
be reopened in a latter prosecution. * * *
The Court specifically recognized that its ruling was
not based on the Double Jeopardy Clause, which, since
judgment. had been rendered prior to trial, was by
its terms inapplicable to bar a subsequent indict-
ment. Instead the Court held that the doctrine of
res judicata was applicable to criminal as well as civil
cases (id. at 88):
The safeguard provided by the Constitution
against the gravest abuses has tended to give
the impression. that when it did not apply in
terms, there ‘tvas no other principle that could.
But the Fifth Amendment was not intended to
do away with what in the civil law is a funda-
mental principle of justice (Jeter v. Hewitt, 22
How. 352, 364), in order, when a man once has
been acquitted on. the merits, to enable the Gov-
ernment to prosecute him a second time.
The principal defect in the reasoning in Hill and the
concurring opinion in Ponto, and in the reliance of
both upon United States v. Oppenheimer, supra, is that
it is based upon a fundamental misconception of the
doctrine of res judicata. While it may be that a pre-
trial dismissal of an indictment on the merits—once
final—bars a second indictment for the same offense,
41
it has never been held that an appeal from the dis-
missal of the original indictment, which seeks its re-
instatement, ‘is similarly barred. So, for example,
while in United States v. Oppenheimer, 242 U.S. 85,
it was held, that under the doctrine uf res judicata
a.final (unappealed) order dismissing an indictment
on statute of limitations grounds barred a second
prosecuticn for the same offense, this Court (before
and after Oppenheimer) has entertained appeals
from pretrial orders dismissing indictments on stat-
ute of limitations grounds. United States v. Gold-
man, 277- U.S. 229; United States v. Rabinowich,
238 U.S. 78; United States v. Barber, 219 USS.
72, 77-78. See also United States v. Zisblatt, 172 F.2d
740 (C.A. 2), appeal disrmnissed, 336 U.S. 934.
Similarly, while it was held in White v. United
States, 377 F.2d 948 (C.A.D.C.) (cited in the con-
curring opinion in Ponto), that a pretrial (unap-
pealed) order dismissing an indictment with preju-
dice because of unnecessary deiay in prosecution
barred a second indictment for the same offense,
this Court has held that an order dismissing an in-
dictment on those grounds is appealable. United
States v. Marion, 404 U.S. 307.
Indeed, the ‘fundamental principle of justice’ in
the civil law that Mr. Justice Holmes applied in United
States v..Oppenheimer, the doctrine of res judicata,
assumes the right of a party to appeal from an ad-
verse judgment; and if the judgment is reversed by
an appellate court, “it is no longer conclusive between
the parties.” ALI, Restatement of the Law of Judg-
ments, § 41(d), p. 163 (1942). Cf. United States v.
42
Kepner, 195 U.S. 100, 134-137 (Holmes, J. dissent-
ing). Were it otherwise, the entire jurisdiction of
appellate courts would be eradicated by the doctrine
of res judicata.
Moreover, not only did the decision in Hill gid
the concurring opinion in Ponto completely misapply
the doctrine of res judicata, they also ignored the
fact that this doctrine as applied to pre-jeopardy rul-
ings on the merits is not mandated by the Double
Jeopardy Clause, but is simply a common law rule
of procedure that Congress is entirely free to modify
by statute.’ And it has done so here.
' Jt is no answer to say, as the majority did in Hill,
that while “[i]t may be that in Oppenheimer the
Court was applying res judicata or collateral estop-
pel rather than, or as much as, double jeopardy, al-
though that is by no means clear iy, Lt J he distinction,
if any, is immaterial” because Ashe v. Swenson, 397
U.S. 436, 445, subsequently held that “the principle
of collateral estoppel is embodied in the Fifth Amenc-
ment guarantee against double jeopardy” (473 F.2d
Arguably, allowing a successive number of indictments
without limitation, where previous indictment have been
dismissed on the merits, may raise due process problems. Such
problems, however, are not presented by permitting a single
appeal from a pretrial order dismissing an indictment on the
merits. See Palko v. Connecticut, 302 U.S. 319.
18 Although it was “by no means clear” to the court of
appeals in Hill, subsequent opinions of this Court have con-
sistently treated Oppenheimer as applying the doctrine of
res judicata. See United States v. Jorn, 400 U.S. 470, 475,.
n. 5; Ashe v. Swenson, 397 U.S. 436, 443; United States v.
Adams, 281 U.S. 202, 205; Collins v. Loisel, 262 U.S. 426, 430.
; 43
_at 762). Ashe v. Swenson merely held that, when a
verdict of acquittal entered by a jury necessarily
determined certain facts in favor of an accused, the
Double Jeopardy Clause could not be avoided by
charging the defendant with another offense the proof
of which required relitigation of the same factual
issue that the prior proceeding, in which he had been
placed in jeopardy, had resolved in the defendant’s
favor.” It does not follow from this that an appeal
from the termination of the prosecution prior to trial,
before jeopardy attached, is barred. Indeed, it is a
settled part of the doctrine of collateral estoppel that
“lijf a judgment rendered by a court of first in-
stance is reversed by the appellate court and a final
judgment is entered by the appellate court or by the
court of first instance in pursuance of the mandate
of the appellate court, this latter judgment is conclu-
sive between the parties.” ALI, Restatement of Judg-
ments, § 69, p. 315 (1942) -“Partmar Corp. v. Para-
mount Corp., 347 U.S. 89, 99, n. 6.
In sum, the rationale of United States v. Hill and
of the concurring opinion in Ponto is as unsound as
the rationale of the plurality opinion in Ponto and
the cases that have follcwed it. Neither affords a
sound basis for overturning the settled doctrine that
1° The issue in Ashe v. Swenson was stated by the Court
in the following way (397 U.S. at 446):
The question is * * * simply whether, after a jury
determined by its verdict that the petitioner was not
one of the robbers, the state could constitutionally hale
- him before a new jury to litigate that issue again.
44
jeopardy does not attach until a triai has begun, and
that an appeal from a pretrial order of dismissal on
the merits is not barred by the Double Jeopardy
Clause. .
c. A third source of authority invoked by peti-
tiorer is United States v. Velazquez, 490 F.2d 29
(C.A. 2), petition for a writ of certiorari pending
(No. 73-6493). Although the court of appeals there
held, in a case closely resembling the instant case on
its facts, that the Double Jeopardy Clause did not bar
‘ an appeal, petitioner relies on the reasoning of the
majority opinion in Velazquez in support of his-posi-
tion here. That opinion stated (490 F.2d at 34): ©
The underlying thrust of the protection
against double jeopardy is thus not to limit the
number of times a defendant may be summoned
intu court on a single offense. Under present
law this may be done repeatedly. It is rather.
to limit to one the number of times that a de-
fendant may ce required to submit proof of his
innocence to challenge or acceptance by the other
side. This expresses the root function of the
trial as a proceeding where litigants are to be
heard before a neutral tribunal, where they
appear and argue as adversaries and where
their case is to be subjected to public scrutiny
and is open to rebuttal. It is multiple trials in
this sense which the double jeopardy clause is
designed to prevent. [Footnote omitted. |
Holding that the Double Jeopardy Clause did not bar
an appeal from the order dismissing the indictment
against Velazquez, the court of appeals observed (id.
at 34-35):
45
The district court’s granting of Velazquez’
motion presented a different situation. Ther?
was no trial. There wes no evidentiary hearing.
There was, in fact, no introduction of evidence
as commonly understood in our adversarial sys-
tem. There was no stipulation of facts. Rather
the court went to the motion papers of the de-
fendant, which included copies of entries in his
Selective Service record, and without giving ei-
ther side an opportunity to be heard, and with-
out even having the defendant appear in open
court, concluded as a matter of law that the
defendant had been deprived of due process * * *
[and that the indictment should be dismissed].
Since,a different result would presumably have fol-
lowed in Velazquez if the Selective Service file had
been “offered” in evidence at a hearing or if the -par-
ties had stipulated to the facts,” petitioner argues
that Velazquez’s reasoning is applicable to the in-
stant case because the United States Attorney con-
ceded at oral argument that petitioner’s letter to his
local board—which was part of the Seleccivé Serv-
ice fiie—established a prima facie claim for treat-
20The court of appeals’ reasoning regarding: a dismissal
on the basis of stipulated facts was as follows (490 F.2d at
34, n.16):
That an adjudication on stipula‘ed facts would bar
retrial is in keeping with this Loiicy of openness. In
such an instance facts have again been offered to the other
side and made part of the public record, with the only
difference that instead of inviting challenge they have
engendered acquiescence.- But at least both sides have had
the opportunity to pass upon them in the process of
submission to the court. * * *
46 |
*
ment as a conscientious objector (Br. 9). But this
was not a stipulation of fact; it was simply a con-
cession regarding the legal consequences cf an un-
disputed f- ct.
In any event, the,“ethereal quality of the cistinc-
tion drawn by the |VelazqueX. majority,” as Chief
Judge Kaufinan aptly phrased it in his dissenting
opinion in [Velazquez] (490 F.2d at 41)," is based
largely on a misunderstanding of the purpose of the
Double Jeopardy Clause and a patently erroneous
reading of the holdings of this Court.
Without belaboring what was said earlier, jeopardy
does not attach until a trial has begun before a trier
of facts capable of convicting the defendant of the
crime charged.” Velazquez suggests that a hearing en
21 Chief Judge Kaufman would have adopted the Ponto
rationale and would have dismissed the appeal because the
order of the district court*was an “acquittal.” It is funda-
mental,” he observed, “that a defendant, once acquitted, may
not again be placed in jeopardy for the same alleged crime”
(490 F.2d 39, emphasis added). Chief Judge Kaufman, how-
ever, did not explain when Velazquez had been initially placed
in jeopardy.
22 The court of appeals in Velazquez observed (490 F.2d at
33):
The Supreme Court has recently cautioned that the
question of assessing whether jeopardy attaches is not
to be decided by any mechanical test. Jllinois v. Somer-
ville, 410 U.S. 458 * * * (1973); United States v. Jorn,
400 US. 470 * * * (1971); United States v. Sisson, 399
U.S. 267 * * * (1970). Accordingly, it is not wholly dis-
positive of the claim raised by Velazquez to state that
since the jury was neither waived nor empaneled, jeop-
47
a pretrial motion to dismiss is to be deemed a “trial”
to which jeopardy attaches when it takes the form
of a “hearing before a neutral tribunal, where [the
parties] appear and argue as adversaries, and where
their case is to be subject to public scrutiny.” This
cannot be correct, however; if it were, then it would
logically follow that, even upon the denial of such a
pretrial motion to dismiss—after oral argument on
the motion or upon a stipulated set of facts—the de-
fendant could not be tried, despite the conclusion of
the district court that he has no defense to the in-
dictment, because the trial itself would constitute a
second jeopardy. Such a result is absurd because
in reality—-whatever the nature of the pretrial pro-
ceedings—the parties are simply agreeing to the
facts for the limited purpose of resolving a control-
ling issue of law without going through the burden,
expense, and emotional strain of a trial.
ardy could not have attached, although this gives rise to
a strong presumption. * * *
We disagree. We have already demonstrated that the test
for determining when jeopardy has attached—the commence-
ment of a trial reflects the considerations underlying the
Double Jeopardy Clause. Accordingly while clear and precise,
it is not “‘mechanical” in any invidious sense. Moreover, there
is nothing in any of the cases cited by the court of appeals
which questions that.basic test. Sisson and Jorn both in-
volved ordeis entered after the commencement of trial, and
both restated the settled rule. Semerville merely cautioned
that there is no “mechanical formula by which to judge the
propriety of declaring a mistrial” after jeopardy attached
(410 U.S. at 462). It did not question the settled rule “that
jeopardy ‘attached’ when the first jury was selected and
sworn” (410 U.S. at 467).
48
Moreover, even assuming the rationale of Velaz-
quez is otherwise valid, it is difficult to understand
how a defendant whe takes advantage of such a pre-
trial motion has been “required to submit proof of
his innocence” (490 F.2d at 34). Not only is the
pretrial proceeding initiated by the defendant, but
(depending on the resolution of the legal issue) the
proof he submits may establish his guilt rather than
his innocence. In the instant case, for example, as
is true in most selective service cases, the principal
“proof” is the Selective Service file. That file estab-
lishes conclusively that petitioner failed to report
for induction as ordered. Whether it also establishes
a defense to the charge depends upon the resolution
of the legd¥ issue, which is the only subject of con-
troversy. There is no reason in law or policy why
the district court should have unreviewable authority
to resolve that issue.
Indeed, had petitioner been convicted after a trial,
and had the court of appeals reversed the judgment
of conviction (on the same grounds relied upon by
the district court), there would be no doubt about
the right of the United States to seek further review.
Yet petitioner argues, and Velazquez suggests, that
an appeal from a pretrial order dismissing an indict-
ment may be barred by the Double Jeopardy Clause.
Such anomalous reasoning hardly justifies a depar-
ture from the settled construction of the Double Jeo-
pardy Clause upon which the court below relied in
upholding the right of the United States to appeal
from the pretrial order dismissing the indictment.
49
a The final authority relied upon by petitioner
is United States v. Findley, 439 F.2d 970 (C.A. 1),
which was decided under the pre-1971 version of the
Criminal Appeals Act. There the court of appeals
suggested that as a matter of policy it was unwise
to permit appeals from pretrial orders granting dis-
missals (id. at 974):
* * * Tf an appeal will lie in the present case,
while it cannot if the defendant waits and sub-
jects himself to jeopardy, informed counsel be-
lieving they have a defense on the merits will
henceforth protect their clients by avoiding an
expediting procedure otherwise beneficial to all
concerned, and only ignorant and ill-advised de-
fendants will subject their defense on the merits
to a government appeal. We will not adopt such
a penalizing construction of the statute.
This consideration of policy, which the court of ap-
peals found persuasive in construing the old C.im-
inal Appeals Act, is beside the point here, since it is
clear that Congress intended to overrule cases such
as Findley when it amended the Act in 1971.
In addition, there is a fundamental defect in the
veasoning of the court of appeals in Findley. It
assumes—we believe erroneously—that a defendant
who is afforded an opportunity to obtain a deter-
mination of a legal defense prior to trial and never-
theless knowingly allows himself to be placed in
jeopardy before raising the defense may assert the
Double Jeopardy Clause as a bar to an appeal from
a ruling in his favor. But since, in these circum-
aD WR NN line itl ae Ca ah tO ES SEE ts atl .
50
stances, it is the defendant who has effectively (and
unnecessarily) placed himself in jeopardy, he should
be in no better position to invoke the Double Jeo-
pardy Clause than a defendant who moves for a mis-
trial based on an event that ocurs at trial and over
which he had no control. Such a motion, at least
where delayed deliberately, would clearly be encom-
passed within the well-settled rule that ‘where cir-
cumstances develop not attributable to prosecutorial
or judicial overreaching, a motion by the defendant
for a mistrial is ordinarily assumed to remove any
barrier to reprosecution.” United States v. Jorn,
supra, 400 U.S. at 485.*
Moreover, even if the Double Jeopardy Clause
could be invoked in such a case, Congress, or this
Court through its rulemaking power (18 U.S.C.
3771), could eliminate the problem about which the
Findley court was concerned by providing that all
legal claims and defenses that are known to the de-
fendant prior to trial and are based upon undis-
puted facts must be raised prior to trial. A delay in
asserting such a claim could either result in a waiver
of the claim (see Davis v. United States, 411 U.S.
233) or a termination of the trial to permit an ap-
peal by the United States if the trial judge rules in
favor of the defendant. See United States v. Moon,
491 F.2d 1047 (C.A. 5). Under such circumstances,
22 In fact, in United States v. Jorn, supra, 400 U.S. at 477,
n. 6, the plurality ovinion clearly intimated that the present
Section 3731, which authorizes appeals from post-jeopardy
dismissals, would ‘deal with the problem” raised by the
court of appeals in /indley.
le a
51
the “defendant’s valued right to have his trial com-
pleted by a particular tribunal must * * * be sub-
ordinated to the public’s interest in fair trials de-
signed to end in just judgments.” Wade v. Hunter,
336 U.S. 684. See also Simmons vy. United States,
142 U.S. 148; Thompson v. United States, 155 U.S.
271; Gori v. United States, 367 U.S. 364; Illinois v.
Somerville, 410 U.S. 458.
Accordingly, there are no legitimate considera-
tions of policy—even assuming such considerations
should affect the decision of this issue—that would
justify depriving the United “tates of its right te
appeal from pretrial orders C:s"1issing indictments.
CONCLUSION
The judgment of the eourt of appeals should be
affirmed.
Respectfully submitted.
ROBERT H. BORK,
Solicitor General.
HENRY E. PETERSEN,
Assistant Attorney General.
ANDREW L. FREY,
Deputy Solicitor General.
EDWARD R. KORMAN,
Attorney.
JULY 1974.
WoW. S. GOVERNMENT PRINTING OFFICE, 1974 5536806 18
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