# Opinion — Serfass v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opinion
- **Published:** January 1, 1975
- **Citation:** 420 U.S. 377

## Text

OLLIE LEO I CL

(Stip Opinion)

NOTE: Where it is feasible, a syllabus (headnote) will be re-
leased, as is being done in connection with this case, at the time
the opinion ts issued. The syllabus constitutes no part of the opinion
of the Court but uas been prepared by the Reporter of Decisions for
the convenience of the reader. See United States v. Detroit Lumber
Co., 200 U.S. 321, 3.7.

SUPREME COURT OF THE UNITED STATES
Syllabus

SERFASS v. UNITED STATES

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE THIRD CIRCUIT

No. 73-1424. Argued December 9, 1974—Decided March 3, 1975

Petitioner, who had submitted a post-induction order claim for
conscientious objector status to his Local Board, was later indicted
for willful failure to report for and submit to induction into the
Armed Forces. He filed a pretrial motion, accompanied by an
affidavit, to dismiss the indictment on the ground that the Local
Board did not state adequate reasons for refusing to reopen his
file and a motion to postpone the trial ‘for the reason that a Mo-
tion to Dismiss has been simultaneously filed and the expeditious
administration of justice will be served best by considering the
Motion prior to trial.” The District Court dismissed the indict-
ment, noting that the material facts were derived from the affidavit,
petitioner’s Selective Service file, and from a stipulation that the
information ‘etitioner had submitted to the Board “establishes a
prima facie claim for conscientious objector status based upon
late crystallization.” The court held that dismissal of the indict-
ment was appropriate because petitioner was entitled to full
consideratjon of his claim before he was assigned to combatant
training and because the Local Board’s statement of reasons for
its refusal to reopen petitioner’s file was “sufficiently ambiguous
to be reasonably construed as a rejection on the merits, thereby
prejudicing his right to in-service review.” The Government ap-
pealed under 18 U. S. C. § 3731. The Court of Appeals, rejecting
petitioner’s contention that it lacked jurisdiction under § 3731
because the Double Jeopardy Clause barred further prosecution,
reversed. Held: The Double Jeopardy Clause does not bar an ap-
peal by the United States under 18 U. S. C. § 3731 from a pre-
trial order dismissing an indictment since in that situation the
criminal defendant has not been “put to trial before the trier of

I

It

SERFASS v. UNITED STATES

Syllabus

facts, whether the trier be a jury or a judge.” United States v.
Jorn, 400 U.S. 470, 479. Pp. 10-17.

(a) In light of the language of the present version of § 3731
and of its legislative history, it is clear that Cungress intended to
authorize an appeal to a court of appeals so long as further prose-
cution would not be barred by the Double Jeopardy Clause.
Pp. 6-10.

(b) The concept of “attachment of jeopardy” defines a point in
criminal proceedings at which the purposes and policies of the
Double Jeopardy Clause are implicated. Jeopardy does not
attach until a defendant is put to trial, which in a jury trial
occurs when the jury is empaneled and sworn and in a nonjury

trial when the court begins to hear evidence. Pp. 10-11.

(c) Jeopardy had not atteched in this case when the District
Court dismissed the indictment, because petitioner had not then
been put to trial. There had been no waiver of a jury trial; the
court had no power to determine petitioner’s guilt or innocence;
and petitioner’s motion was premised on the belief that its con-
sideration before trial would serve the “expeditious administration
of justice.” Pp. 11-12.

(d) The principle that jeopardy does not attach until a defend-
ant is put to trial before the trier of facts is no mere technicality
or mechanical rule, and petitioner’s contention that the District
Court’s dismissal of the indictment was the “functional equivalent
of an acquittal on the merits” is without substance, as the word
“acquittal” has no significance unless jeopardy has attached.
United States v. Sisson, 399 U. S. 267; United States v. Brewster,
408 U.S. 501, distinguished. Pp. 12-16.

492 F. 2d 388, affirmed.

Burcer, C. J., delivered the opinion of the Court, in which Bren-

NAN, STEWART, YWyHITE, MARSHALL, BLACKMUN, PoWELL, and REHN-
quist, JJ., joined. Doveras, J., filed a dissenting statement.

.
~ seem sey

EP ire AL MOLY WO

NOTICE : This opinion is subject to formal revision before publication
in the preliminary print of the United States Reports. Readers are re-
uested to notify the Keporter of Decisions, Supreme Court of the
Inited States, Washington, D.C. 20543, of any typograpuical or other
formal errors, in order tiat corrections may be made before the pre-
liminary print zoes to press.

SUPREME COURT OF THE UNITED STATES

No. 73-1424

David Emery Serfass,
Petitioner,
v.

United States.

On Writ of Certiorari to the
United States Court of Appeals
for the Third Circuit.

[March 3, 1975]

Mr. Cu1eF Justice Burcer delivered the opinion of
the Court.

We granted certiorari to decide whether a court of
appeals has jurisdiction of an appeal by the United States
from a pretrial order dismissing an indictment based on a
legal ruling made by the District Court after an examina-
tion of records and an affidavit setting forth evidence to
be adduced at trial.

I

The material facts are not in dispute. Petitioner,
whose military service had been deferred for two yeai's
while he was in the Peace Corps, was ordered to report
for induction on January 18, 1971. On December 29,
1970, he requested the form for conscientious objectors,
Selective Service Form 150, and after submitting the com-
pleted form to his Local Board, he requested an inter-
view. Petitioner met with the Local Board on Janu-
ary 13, 1971, @ thereafter he was informed by letter
that it had considered his entire Selective Service file, had
“unanimously agreed that there was no change over
which [petitioner] had no control,’ and had therefore
“decided not to reopen [petitioner’s] file.” He was also
informed that he was “still under Orders to report for

eR TRO NTS

Ry ge ¥

Sak DO Ga ER a aR RN DEL bt

DUE ALL AE AED *

2 SERFASS v. UNITED STATES

induction on January 18, 1971,at 5:15 A.M.” Petitioner
appeared at the examining station and refused induction
on January 18.

A grand jury returned an indictment charging peti-
tioner with willfully failing to report for and submit to
induction into the Armed Forces, in violation of 50
U.S. GC. App. § 462 (a) (1970). At petitioner’s arraign-
ment he pleaded not guilty and demanded a jury trial.
The trial date was set for January 9, 1973. Prior to that
time, petitioner filed a motion to dismiss the indictment
on the ground that the Locai Board did not state ade-; ,
quate reasons for its refusal to reopen his file. Attached
to the motion was an affidavit of petitioner stating merely
that he had applied for conscientious objector status and
that the Local Board’s letter was the only communica-
tion concerning his claim which he had received. 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 w ill be served best by considering the Motion
prior to trial.’

On January 5 the’ District Court granted petitioner’s
motion to continue the trial and set a date for oral argu-
ment on the motion to dismiss the indictment. Briefs
were submitted, and after hearing oral argument, the Dis-
trict Court entered an order directing the parties to sub-

‘mit a copy of petitioner’s Selective Service file. On July

16, 1973, it ordered that the indictment be dismissed. In
its memurandum, the court noted that the material facts
were derived from petitioner’s affidavit, from his Selective
Service file, and from the orai stipulation of counsel] at
the argument “that the information which Serfass sub-
mitted to the Board establishes a prima facie claim for
conscientious objector status based upon late crystalliza-

ES
~
;
NN .
.

SERFASS v. UNITED STATES oe

tion.”’ The District Court held that dismissal ofthe in-
dictment was appropriate because petitioner was “en-
titled to full consideration of his claim prior to assign-
ment to combatant training and service,” and because the
Local Board’s statement of reasons for refusing to reopen
his Selective Service file was “sufficiently ambiguous to be
reasonably construed as a rejection on the merits, thereby
prejudicing his right to in-service review.” *

The United States appealed to the United States Court
of Appeals. for the Third Circuit, asserting jurisdiction
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.* In a “Motion to Quash
Appeal for Lack of Jurisdiction” and in his brief, peti-
tioner contended that the Court of Appeals lacked juris-

1 The District Court concluded that petitioner’s defense was prop-
erly raised by motion before trial and that, although petitioner had
not waived his right to trial by jury, his defense was properly to be
determined by the court. Fed. Rule Crim. Proe. 12 (b)(1), 12
(b)(4). Compare United States v. Ponto, 454 F. 2d 657, 663 (CA7
1971), with United States v. Ramos, 413 F. 2d 743, 744, n. 1. (CAI
1969). See United States v. Covington, 395 U. 8. 57, 60 (1969);
United States v. Sisson, 399 U.S. 267, 301 (1970); United States v.
Knorz, 396 U.S. 77, 83 (1969): 8 J. Moore, Federal Practice € 12.04
(R. Taylor und M. Harley eds. 1974).

2In ordering dismissal the District Court relied primarily on
United States v. Liskowski, 465 F. 2d 480 (CA3 1972), and United
States v. Folino, No. 72-1974 (CA3 June 29, 1973) (unreported).

318 U.S. C. §3731 (1970) provides in pertinent part:

“In a criminal case an appeal by the United States shall lie to a
court of appeals from a decision, judgment or order.of a district
court dismissing an indictment or information as to any one or more
counts, except that no appeal shall lie where the double jeop-
ardy clause of the United States Constitution prohibits further
prosecution.

“The provisions of this section shall be liberally construed to
effectuate its purposes.”

yes ee

4 SERFASS v. UNITED STATES

diction because further prosecution was prohibited by the
Double Jeopardy Clause of the United States Constitu-
tion. The Court of Appeals rejected that contention. It
concluded that, although no appeal would have been pos-
sible in this case under the Criminal Appeals Act as it
existed prior co the 1970 amendments,* those amendments
were “clearly intended to enlarge the Government’s right
to appeal to include all cases in which such an appeal
would be constitutionally permissible.” Relying on its
earlier opinion in United States v. Pecora, 484 F. 2d 1289
(CA3 1973), the Court of Appeals held that since peti-
tioner had not waived his right to a jury trial * and no
jury had been empaneled and sworn at the time the
District Court ried on his motion to dismiss the in-
dictment, jeopardy had not attached and the dismissal
was an appealable order. Pecora had held appealable,
under the present version of § 3731, a pretrial dismissal
of an indictment based on a stipulation of the facts upon
which the indictment was based. In this case the Court
of Appeals saw “no significant constitutional difference”
arising from the fact that “the instant dismissal was based

* Prior to the 1970 ameffdments, which were effective January 2,
1971, 18 U. S. C. § 3731 authorized an appeal by the United States
to a court of appeals in all criminal cases “[f]rom a decision or
judgment setting aside. or dismissing any indictment or information,

_ or anv count thereof, except where a direct appeal to the Supreme
_ Court is provided by this section.” Under this provision, the Court

of Appeals con.-luded, appeals “were permissible only if the dismissal
of an indictment was based on a defect in the indictment or in the
institution of the prosecution. rather than upon evidentiary facts
outside the face of the indictment which woud possibly constitute a
defense at trial.”

5 The Court of Appeals noted that the District Court “expressly
found that [petitioner] did not waive his night to a jury trial,” that
the procedures for waiver required by Fed. Rule’ Crim. Proc. 23 (a)
had not been complied with, and that simultaneously with his motion
to dismiss the indictment petitioner had filed a motion to postpone
the trial. ;

SERFASS v. UNITED STATES 5

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.” In both
cases “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,’ and in both
“denial of the motion to dismiss [would have] entitled
the defendant to the jury trial which he ha[d] not
waived.” ©

As to the merits, the Court of Appeals concluded that
in Musser v. United States, 414 U. S. 31 (1973), this
Court had “placed an abrupt end to [the] line of cases”
on which the District Court relied. It held that Musser
should be applied retroactively to registrants such as pe-
titioner who refused induction before the case was de-
cided, and that since petitioner’s Local Board was with-
out power to rule on the merits of a post-induction order
conscientious objector claim, his right to in-service review
was not prejudiced. Accordingly, it reversed the order
of the District Court and remanded the case for trial or
other proceedings consistent with its opinion.

Because of an apparent conflict among the courts of
appeals concerning the question whether the Double
Jeopardy Clause permits an appeal under § 3731 from a
pretrial order dismissing an indictment in these circum-

®In Pecora the Court of Appeals distinguished United States v.
Hill, 473 F. 2d 759 (CA9 1972), holding unappealable’ the pretrial
dismissal of an indictment alleging the mailing of obscene advertise-
ments, on the grounds that in Hill (1) there was no determination
whether the defendant had waived his right to a jury trial and
(2) the District Court determined the character of evidence actually
entered into the record “so it may be said that jeopardy had
attached.” In this case the Court of Arpeals concluded that the
second distinction between Pecora and Hill did not “permit our
holding the instant order unappealabie,” and it noted that to the
extent Pecora and Hill were inconsistent, it was bound by Pecora.

ed

6 SERFASS v. UNITED STATES

stances, we granted certiorari. Petitioner did not seek
review of, and we express no opinion with respect to, the
holding of the Court of Appeals on the merits.

II

Prior to 1971, appeals by the United States in criminal
cases were restricted by 18 U.S. C. § 3731 to categories
descriptive of .the action taken by a district court, and
they were divided between this Court and the courts of
appeals.” In United States v. Sisson, 399 U. 8. 267, 307-

7 Title 18 U. S. C. § 3731 (1964 ed., Supp. V) provided in pertinent
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 dismissing 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.

“From a decision arresting a judgment of conviction for insuffi-
ciency of the indictment or information, where such decision is based
upon the invalidity or construction of the statute upon which the
indictment or information is founded. .

“From the decision or jiidgment sustaining a motion in bar, when
the defendant has not been put in jeopardy.

“An appeal may be taken by and on behalf of the United States
from the district courts to a court ©f appeals in all criminal cases,
in the following instances:

“From a decision or judgment setting aside, or dismissing any
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.

“From a decision arresting-a judgment of conviction except where
a direct appeal to the Supreme Court of the United States is pro-
vided by this section.”

Provision for appeals in certain cases to the courts of appeals was
first made in 1942. Act of May 9, 1942, c. 295, §1, 56 Stat. 271,
codified as former 18 U. S. C. § 682 (1946). Section 682 provided
for an appeal to a Court of. Appeals from “a decision or judgment

sd

SERFASS v. UNITED STATES 7

308 (1970), Mr. Justice Harlan aptly described the situ-
ation obtaining under the statute as it then read:

“Clarity is to be desired in any statute, but in mat-
ters of jurisdiction it is especially important. Other-
wise the courts and the parties must expend great
energy, not on the merits of dispute settlement, but
on simply deciding whether a court has the power to
hear a case. When judged in these terms, the Crim-
inal Appeals Act is a failure. Born of compromise,
and refiecting no coherent allocation of appellate re-
sponsibility, the Criminal Appeals Act proved a most
unruly child that has not improved with age. The
statute’s roots are grounded in pleading distinctions
that existed at common law but that in most in-
stances, fail to coincide with the procedural cate-
gories of the Federal Rules of Criminal Procedure.
Not onlv does the statute create uncertainty by its
requirement that one analyze the nature of the de-
cision of the district court in order to determine
whether it falls within the class of common law dis-
tinctions for which an appeal is authorized, but it
has also engendered confusion over the court to which
an appealable decision should be brought.”

At the same time that this Court was struggling with the
“common law distinctions” of former § 3731, the decisions

of the courts. of appeals were apt ake that, even
when apparently straightforward, the Janguage of the
statute was deceptive. Thus, although after 1948 * § 3731

quashing, setting aside, or sustaining a demurrer or plea in abate-
ment to any indictment or information, or any count thereof except
where a direct appeal to the Supreme Court of the United States
is provided by this Act.”

8 Act of June 25, 1948, c. 645, 62 Stat. 844, codified as former
18 U.S.C. § 3731 (1946 ed., Supp. II). The reviser’s note states that
“{mJinor changes were made to conform to rule 12 of the Federal
Rules of Criminal Procedure.” 18 U.S. C. A. § 3731 (1969).

8 SERFASS v. UNITED STATES

literally authorized an appeal to a court of appeals when-
ever an indictment or information was set aside or dis-
missed except where direct’ appeal to this Court was au-
thorized. that provision was generally construed, as it
was construed by the Court of Appeals in this case, ante,
at 4 with n. 4, to authorize an appeal to a court of appeals
only if the decision setting aside or dismissing an indict-
ment or information was “based upon a defect in the in-
dictment.or information, or in the institution of the prose-
cution.” United States v. Apex Distributing Co., 270 F.
2d 747. 755 (CA9 1959). See United States v. Ponto, 454
F. 2d 657. 659-663 (CA7 1971). In such fashion, even
those “common law distinctions” which were removed
from the face of the Criminal Appeals Act by the 1948
amendments were preserved by judicial construction.
See United States v. Aper Distributing Co., 270 F. 2d, at
751-755; United States v. Di Stefano, 464 F. 2d 845, 847-
848 (CA2 1972).

The limits of the appellate jurisdiction of this Court
and the courts of appeals under former § 3731. as con-
strued, resulted in the inability of the United States to
appeal from the dismissal of prosecution in a substantial
number of criminal cases. In those cases where appel-
late jurisdiction lay in this Court. review was limited
further by decisions of “the United States not to appeal
the dismissal of a prosecution believed to be erroneous,
simply because the question involved [was] not deemed
of sufficiently general importance to warrant’ our
attention.’

It was against this background that Congress under-
took to amend § 3731. The legislative history of the
1970 amendments indicates that Congress was concerned

® Department of Justice Comments on S. 3132, in S. Rep. No.
91-1296, 91st Cong., 2d Sess., at 24 (1970). See also Letter from
Solicitor General Griswold to Senator McClellan, id., at 33.

2

PNR PT

SERFASS v. UNITED STATES 9

with what it perceived to be two major-problems under
the statute as then construed: lack of appealability in
many cases. and the requirement that certain appeals
could be taken only to this Court. See S. Rep. No.
91-1296, 91st Cong., 2d Sess., at. 4-13 and 13-18 (1970).
Particular concern was expressed with respect to prob-
lems of appealability “in selective service cases where
judges have reviewed defendants’ selective service files be-
fore trials and dismissed the indictments after finding that
there have been errors by the draft boards.” /d., at 14.
Congress was of the view that “earlier versions of § 3731”
had been subject to “restrictive judicial interpretations
of congressional intent.” /d., at 18. Accordingly, ‘it
determined to “assure that the United States may appeal
from the dismissal of a criminal prosecution by a District
Court in all cases where the Constitution permits,” and
that “the appeal shall be taken first to a court of appeals.”
Td., at 2-3. See id., at 18.

In light of the language of the present version of § 3731,
including the admonition that its provisions “shall be
liberally construed to effectuate its purposes.” and of its
legislative history.'” it is clear to us that Congress in-
tended to authorize an appeal to a court of appeals in
this case so long as further prosecution would not be

10 The relevance and significance of the “well considered and care-
fully prepared” report of the Senate Judiciary Committee, see
Schwegmann Brothers v. Calvert Distillers Corp., 341 U.S. 384, 395
(1951) (Jackson, J., concurring), is not affected by the fact that
the amendments proposed by the Committee and adopted without
change by the Senate were modified by the House-Senate Conference
Committee. See H. Conf. R. No. 91-1768, 91st Cong., 2d Sess., at
21 (1970). The latter report contains no explanation of the changes
made, and the changes themselves are consistent with the intent
expressed in the Senate Report. See United States v. Wilson, shp
op., at 5-7 (1975).

10 SERFASS v. UNITED STATES

barred by the Double Jeopardy Clause.'' We turn to
that inquiry.
. III

' Although articulated in different wavs by this Court,
the purposes of, and the policies which animate. the
Double Jeopardy Clause in this context are clear. “The
constitutional -prohibition against ‘double jeopardy’ was
designed to protect an individual from being subjected
to the hazards of trial and possible conviction more than
once for an alleged offense... . The underlying idea,
one that is. deeply ingrained in at least the Anglo-
American system of jurisprudence, is that the State with
all its resources and power should not be allowed to make
repeated attempts toe convict an individual for an alleged
offense, thereby subjecting him to embarrassment, ex-
pense and ordeal and compelling him to live in a state
of anxiety and insecurity, as well as enhancing the pos-
sibility that ev@a though innocent he may be found
guilty.” Green v. United States, 355 U. S. 184, 187-188
(1957). See United States v. Jorn, 400 U. S. 470. 479
(1971); Price v. Georgia, 398 U. S. 323, 326 (1970).
As an aid to the decision of cases in which the prohibi-
tion of the Double Jeopardy Clause has been invoked,
the courts have found it useful to define a point in crimi-
nal proceedings at which the constitutional purposes and
policies are implicated by resort to the concept of ‘“attach-
ment of jeopardy.” See United States v. Jorn, 400 U.S.,
at 480. In the case of a jury trial, jeopardy attaches
when a jury is empaneled and sworn. Downum v.
United States, 372 U.S. 734 (1963); Ilmois v. Somer

11 This has been the general view of the courts of appeals. E. g.,
United States v. Jenkins, 490 F. 2d 868, 870 (CA2 1973), aff’d, —
U.S. — (1975); United States v. Brown, 481 F. 2d 1035, 1039-
1040 (CAS 1973). But see, e. g., United States v. Southern R. Co.,
485 F. 2d 309, 312 (CA4 1973).

*) 5

SERFASS v. UNITED STATES 11

ville, 410 U. S. 458 (1973). In a nonjury trial, jeop-
ardy attaches when the court begins to hear evidence.
McCarthy v. Zerbst, 85 F. 2d 640, 642 (CA10 1936).
See Wade v. Hunter, 336 U. S. 684, 688 (1949). The
Court has consistently adhered to the view that jeopardy
does not attach, and the constitutional prohibition can
have no application, until a defendant is “put to trial
before the trier of facts, whether the trier be a jury or
a judge.” United States v. Jorn, 400 U.S.. at 479. See
Kepner v. United States, 195 U. S. 100, 128, 130-131
(1904); United States v. McDonald, 207 U. S. 120, 127
(1907); Bassing v. Cady, 208 U.S. 386, 391-392 (1908) ;
Collins v. Lowel, 262 U. S. 426, 429 (1923).

Under our cases jeopardy had not yet attached when
the District Court granted petitioner’s motion to dismiss
the indictment. Petitioner was not then, nor has he
ever been, “put to trial before the trier of facts.” The
proceedings were initiated by his motion to dismiss the
indictment. Petitioner had not waived his right to a
jury trial, and, of course, a jury trial could not be waived
by him without the consent of the Government and of
the court. Fed. Rule Crim. Proc. 23 (a). See Patton v.
United States, 281 U.S. 276, 312 (1930) ; Singer v. United
States, 380 U. S. 24 (1965). In such circumstances, the
District Court was without power to make any determi-
nation regarding petitioner’s guilt or innocence. Peti-
tioner’s defense was raised before trial precisely because
“trial of the facts surrounding the commission of the
alleged offense would be of no assistance in determining”
its validity. United States v. Covington, 395 U. S. 57,

12 To the extent the passages referred to deal with the predecessors
of the present version of § 3731, they are releyant because of the
Court’s view that appeals from orders entered prior to the attach-
ment of jeopardy presented no constitutional problem. See post,
at 15.

4
C4
R
&

NS AIREY IOTMOAE TI CE

12 SERFASS v. UNITED STATES

60 (1969). See Fed. Rule Crim. Proc. 12 (b)(1)."* His
motion to postpone the trial was premised on the belief
that ‘the expeditious administration of justice will be
served best by considering the Motion [to dismiss the
indictment] prior to trial.” At no time during or fol-
lowing the hearing on petitioner’s motion to dismiss the
indictment did the District Court have jurisdiction to
do more than grant or deny that motion, and neither
before nor after the ruling did jeopardy attach.

IV

Petitioner acknowledges that ‘formal or technical
jeopardy had not attached” at the time the District
Court ruled on his metion to dismiss the indictment.
However. he argues that because that ruling was based
on “ ‘evidentiary facts outside of the indictment, which
facts would constitute a defense on the merits at trial,’
United States v. Brewster, 408 U.S. 501, 506 (1972),” it
was the “functional! equivalent of an acquittal on the mer-
its’ and “constructively jeopardy had attached.” The
argument is grounded on two basic and interrelated
premises. First, petitioner argues that the Court has ad-
monished against the use of “technicalities” in interpret-
ing the Double Jeopardy Clause, and he contends that the
normal rule as..to the attachment of jeopardy is merely
a presumption which is rebuttable in cases where an
analvsis of the respective interests of the Government
and the accused indicates that the policies of the Double
Jeopardy Clause would be frustrated by further prosecu-
tion. Cf. United States v. Velazquez, 490 F. 2d 29, 33

13 Pursuant to 18 U. S. C. §§ 3771 and 3772 (1970), proposed
amendments to the Federal Rules of Criminal Procedure, including
amendments to Rule i2, were transmitted to Congress on April 22,
1974. The effective date of the proposed amendments was post-
poned: until August 1, 1975, by Act of July 30, 1974, 88 Stat. 397.

Pr it TE OR

SERFASS v. UNITED STATES 13

(CA2 1973). Second, petitioner maintains that the dis-
position of his motion to dismiss the indictment was,
in the circumstances of this case, the “functional equiva-
lent of an acquittal on the merits,” and he concludes that
the policies of the Double Jeopardy Clause would in fact
be frustrated by further prosecution. See United States
v. Ponto, 454 F. 2d 657, 663-664 (CA7 1971). We dis-
agree with both of petitioner’s premises and with his
conclusion.

It is true that we have disparaged “rigid, mechanical”
rules in the interpretation of the Double Jeopardy Clause.
Tllinois v. Somerville, 410 U. S. 458, 467 (1973). How-
ever, we also observed in that case that “the conclusion
that jeopardy has attached begins, rather than ends, the
inquiry as to whether the Double Jeopardy Clause bars
retrial.” Ibid. Cf. United States v. Sisson, 399 U. S.
267, 303 (1971). Implicit in the latter statement is the
premise that the “constitutional policies underpinning
the Fifth Amendment’s guarantee” are not implicated
before that point in the proceedings at which “jeopardy
attaches.” United States v. Jorn, 400 U. S. 470, 480
(1971). As we have noted above, the Court has con-
sistently adhered to the view that jeopardy does not
attach until a defendant is “put to trial before the trier
of facts, whether the trier be a jury or a judge.” /d., at
479. This is by no means a mere technicality, nor is
it a “rigid, mechancial” rule. It is, of course, like
most legal rules. an attempt to impart content to an
abstraction. a

When a criminal prosecution is terminated prior to
trial, an accused is often spared much of the expense,
delay, strain, and embarrassment which attend a trial.
See Green v. United States, 355 U. S. 184, 187-188
(1957); United States v. Jorn, 400 U. S., at 479. Al-
though an accused may raise defenses or objections

wan A. ale

14 SERFASS v. UNITED STATES

before trial which are “capable of determination without
the trial of the general issue,” Fed. Rule Crim. Proc.
12(b)(1), and although he inust raise certain other
defenses or objections before trial, Fed. Rule Crim. Proc.
12 (b)(2), in neither case is he “subjected to the hazards
of trial and possible conviction.” Green v. United
States, 355 U. S., at 187. Moreover, in neither case
would an appeal by the United States “allow the prosecu-
tor to seek to persuade a second trier of fact of the
defendant’s guilt after having failed with the first.”
United States v. Wilson, slip op., at 20. See United
States v. Jorn, 400 U. S., at 484. Both the history of
the Double Jeopardy Clause and its terms demonstrate
that it does not come into play until a proceeding begins
before a trier “having jurisdiction to try the question of
the guilt or innocence of the accused.” Kepner v. United
States, 195 U.S. 100, 133 (1904). See Price v. Georgia,
398 U.S. 323, 329 (1970). Without risk of a determira-
tion of guilt, jeopardy dees not attach, and neither
an appeal nor further prosecution constitutes doubl2
jeopardy.

Petitioner’s second premise, that the dispositica of his
motion to dismiss the indictment was the “functional
equivalent of an acquittal on the merits,’ and his con-
clusion that the policies of the.Dcuble Jeopardy Clause

. would be frustrated by further prosecution in his case

need not, in light of the conclusion we reach above, long
detain us. It is, of course, settled that “a verdict of ac-
quittal . . . is a bar to a subsequent prosecution for the
same offense.” United States v. Ball, 163 U.S. 662, 671
(1896); Green v. United States, 355 U. S., at 188. Cf.
Kepner v. United States, supra; Fong Foo v. United
States, 369 U.S. 141 (1962). But the language of cases
in which we have held that there can be no appeal from,
or further prosecution after, an “acquittal” cannot be

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SERFASS v. UNITED STATES ~ 15

divorced from the procedural context in which the action
so characterized was taken. See United States v. Wilson,
slip op., at 15-16. The word itself has no talismanic
quality for purposes of the Double Jeopardy Clause.
Compare United States v. Oppenheimer, 242 U.S. 85, 88
(1916), with United States v. Barber, 219 U.S. 72, 78
(1911), and United States v. Goldman, 277 U. S. 229,
236-237 (1928). In particular, it has no significance in
this context unless jeopardy has once attached and an
5 accused has been subjected to the risk of conviction.

Our decision in United States v. Sisson, 399 U. S. \267
(1971), is not to the contrary. As we have no in
United States v. Wilson, slip op., at 18-19, we do not be-

' lieve the Court in Sisson intended to express an opinion
with respect to the constitutionality of an appeal by ithe |
United States from the order entered by the District
Court in that case. Moreover, even if we were to take
the contrary view, we would reach the same conclusion
here. For in Sisson, jeopardy had attached; the order
of the District Court was “a legal determination on the
basis of facts adduced at the trial relating to the general
issue of the case.” I/d., at 290 n. 19. See id., at 288;
United States v. Jorn, 400 U. S., at 478 n. 7. Whatever
else may be said about Sisson," it does not alter the fun-
damental principle that an accused must suffer jeopardy
before he can suffer double jeopardy. \-

Similarly, petitioner’s reliance on United States v.-
Brewster, 408 U.S. 501 (1972),.is misplaced. The ques-*,
tion in that case was whether the Court had “jurisdiction “~*~
under 18 U.S. C. § 3731 (1964 ed., Supp. V) to review the
District Court’s [pretrial] dismissal of the indictment
against appellee.” Jd., at 503-504. In the course of

It is clear that Congress intended to overrule Sisson’s construc-
tion of former § 3731 in the 1970 amendments. See 8. Rep. No.
91-1296, 91st Cong., 2d Sess., at 11 (1970); n. 10, supra.

se rey ea |

16 SERFASS v. UNITED STATES

concluding that there was jurisdiction, we observed:
“Under United States v. Sisson, 399 U.S. 267 (1970), an
appeal does not lie from a decision that rests, not upon
the sufficiency of the indictment alone, but upon extrane-
ous facts. If an indictment is dismissed as a result of
stipulated fact or the showing of evidentiary facts outside
the indictment, which facts would constitute a defense
on the merits at trial, no appeal is available. See United
v. Findley, 439 F. 2d 970 (CA11971).” Id., at 506.

e question at issue in Brewster, the question decided
in Sisson, and the citation of United States v. Findley,"
demonstrate beyond question that this passage in Brew-
ster was not concerned with the constitutional question
which, by virtue of the 1970 amendments to 18 U. S. C.
§ 3731, is before usin thiscase, ®

Vv

In holding that the Court of Appeals correctly deter-
mined that it had jurisdiction of the United States’ ap-
peal in this case under 18 U. S. C. § 3731, we of course
express no opinion or#the question whether a similar rul-
ing by the District Court after jeopardy had attached
would have been appealable. Nor do we _ inti-
mate any view concerning the case put by the Solicitor
General, of “a defendant who is afforded an oppor-
tunity to obtain a determination of a legal defense prior
to the trial and nevertheless knowingly allows himself
to be placed in jeopardy before raising the defense.”
Compare United States v. Findley, 439 F. 2d, at 973, with
United States v. Pecora, 484 F. 2d 1289, 1293-1294 (CA3
1973). See United States v. Jenkins, 490 F. 2d 868, 880

15In analyzing Sisson the Court of Appeals in Findley concluded:
“Collectively we believe this was an approach not in terms of double
jeopardy, but in terms of the kind of error section 3731 was intended
to cover.” 439 F. 2d, at 973.

SERFASS v. UNITED STATES 17

(CA2 1973), aff'd, —— U. S. — (1975). We hold only
that the Double Jeopardy Clause does not bar an appeal
by the United States under 18 U.S. C. § 3731 with respect
to a criminal defendant who has not been “put to trial
before the trier of facts, whether the trier be a jury or a
judge.” United States v. Jorn, 400 U. S., at 479.

Affirmed.

Mr. Justice Dove.as dissents, being of the view that
the ruling of the District Court was based on evidence
which could constitute a defense on the merits and there-
fore caused jeopardy to attach.

ME ETINES UG!

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0383%3A6. Public record. Not legal advice.