UNITED STATES V. SISSON, 399 U. S. 267 (1970)
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U.S. Supreme Court
United States v. Sisson, 399 U.S. 267 (1970)
United States v. Sisson
No. 305
Argued January 20-21, 1970
Decided June 29, 1970
399 U.S. 267
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
Syllabus
Appellee was indicted for willfully failing to report for induction as ordered by his local draft board. He moved to dismiss the indictment because (1) the involvement in Vietnam violated international law, (2) he "reasonably believed the government's involvement in Vietnam to be illegal," (3) the Selective Service Act and its regulations were unconstitutional, as the local boards' procedures lacked due process, and (4) compulsory conscription in peacetime was unnecessary, and stifled fundamental liberties. The District Judge dismissed the motion, and the case proceeded to trial. The instructions to the jury made no reference to a conscientious objector claim, or to whether the appellee was "sincere" in his beliefs, but advised the jury that the crux of the case was whether appellee's refusal was "unlawful, knowingly, and willfully" done. The jury returned a verdict of guilty. Thereafter, appellee made a motion under Fed.Rule Crim.Proc. 34 to arrest the judgment on the ground that the District Court lacked jurisdiction. The District Court, in granting what it termed a motion in arrest of judgment, ruled not on the jurisdictional contention, but on appellee's "older contention" that the indictment could not charge an offense based on the Establishment, Free Exercise, and Due Process Clause arguments relating to conscientious objections to the Vietnam conflict. The court stated the facts of the case and described how appellee's demeanor on the stand convinced the judge of his sincerity. The court held that the Free Exercise and Due Process Clauses prohibited application of the Draft Act to appellee to require him to fight in Vietnam because, as a "sincerely conscientious man," his interest in not killing in Vietnam outweighed "the country's present need for him to be so employed." The court also ruled that § 6(j) of the Selective Service Act violates the Establishment Clause. The Government bases its claim that this Court has jurisdiction to review the case on the "arresting judgment" provision of 18 U.S.C. § 3731, which provides that an appeal may be taken to the Supreme Court from a decision (1) arresting a judgment of conviction, (2) for insufficiency of the indictment or information, (3) where such decision
is based upon the invalidity or construction of the statute upon which the indictment or information is founded.
Held:
1. The decision below was not one "arresting a judgment of conviction." Pp. 399 U. S. 280-287.
(a) In granting a motion in arrest of judgment under Fed.Rule Crim.Proc. 34, which preserves the common law requirement, a district court must not look beyond the face of the record, and thus a decision based on evidence adduced at trial cannot be one arresting judgment. Pp. 399 U. S. 280-282.
(b) The District Court clearly went beyond the "face of the record" in reaching its decision, as the court's factual findings concerning appellee's sincerity and opposition to fighting in Vietnam are essential to its disposition of the case. Pp. 399 U. S. 283-284.
(c) Even assuming, arguendo, that the parties could secure review under the "motion in arrest" provisions of § 3731 on the basis of a stipulation, there certainly was no formal stipulation here, and the most that can be said is that, after the lower court's decision, the Government chose to accept the opinion's findings of fact. Pp. 399 U. S. 284-287.
2. The indictment here was not insufficient, as it recited the necessary elements of an offense, and did not allege facts that themselves demonstrate the availability of a constitutional privilege. Pp. 399 U. S. 287-288.
3. Since the disposition below was based on factual conclusions not found in the indictment, but resulting from evidence adduced at trial, the decision was, in fact, an acquittal rendered after the jury's verdict of guilty, and not, as characterized by the trial judge, an arrest of judgment. Pp. 399 U. S. 288-290.
4. The legislative history of the Criminal Appeals Act, rather than manifesting a broad congressional directive to this Court to review important legal issues, shows a legislative policy to provide review in only certain cases and to restrict it to those instances. A primary concern of the Act is that no appeal be taken by the Government from an acquittal, no matter how erroneous the underlying legal theory. Pp. 399 U. S. 291-299.
5. This Court does not have jurisdiction in this case under the "motion in bar" provision of § 3731. Pp. 399 U. S. 299-307.
(a) A motion in bar cannot be granted on the basis of facts that would necessarily be tried with the general issue in the case, and, here, the District Judge based his findings on evidence presented in the trial of the general issue. Pp. 399 U. S. 301-302.
(b) An appeal from a motion in bar cannot be granted after jeopardy attaches, and, in light of the compromise origins of the Criminal Appeals Act, the concern of some Senators over retrial of a defendant whose trial ended after the jury was impaneled, and the long-time consistent interpretation by the Government, jeopardy attaches when the jury is sworn. Pp. 399 U. S. 302-307.
297 F.Supp. 902, dismissed.
MR. JUSTICE HARLAN delivered the opinion of the Court. *
The Government seeks to appeal to this Court a decision by a District Court in Massachusetts holding that appellee Sisson could not be criminally convicted for refusing induction into the Armed Forces. The District Court's opinion was bottomed on what that court understood
to be Sisson's rights of conscience as a nonreligious objector to the Vietnam war, but not wars in general, under the Free Exercise and Establishment Clauses of the First Amendment and the Due Process Clause of the Fifth Amendment to the Constitution of the United States. The District Court's primary conclusion, reached after a full trial, was that the Constitution prohibited "the application of the 1967 draft act to Sisson to require him to render combat service in Vietnam" because, as a "sincerely conscientious man," Sisson's interest in not killing in the Vietnam conflict outweighed "the country's present need for him to be so employed," 297 F.Supp. 902, 910 (1969).
The District Court characterized its own decision as an arrest of judgment, and the Government seeks review here pursuant to the "arresting judgment" provision of the Criminal Appeals Act, 18 U.S.C. § 3731, an Act that narrowly limits the Government's right to appeal in criminal cases to certain types of decisions. On October 13, 1969, this Court entered an order postponing further consideration of the question of jurisdiction to the hearing of the case on the merits, 396 U.S. 812 (1969). For reasons that we elaborate in what follows, we conclude that the decision below, depending as it does on facts developed at Sisson's trial, is not an arrest of judgment, but, instead, is a directed acquittal. As such, it is not a decision that the Government can appeal. Consequently, this appeal must be dismissed for lack of jurisdiction without our considering the merits of this case. We, of course, intimate no view concerning the correctness of the legal theory by which the District Court evaluated the facts developed at the trial. [Footnote 1]
As a predicate for our conclusion that we have no jurisdiction to entertain the Government's appeal, a full statement of the proceedings below is desirable.
I
A single-count indictment charged that Sisson "did unlawfully, knowingly and willfully fail and neglect and refuse to perform a duty" imposed by the Military Selective Service Act of 1967 and its regulations, in violation of § 12 of the Act, 81 Stat. 105, 50 U.S.C.App. 462(a) (1964 ed., Supp. IV), because he failed to obey an order by his local draft board to submit to induction.
Prior to trial, Sisson' attorney moved to dismiss the indictment on three grounds. It was claimed that Sisson's refusal to submit to induction was justified first, because "the government's military involvement in Vietnam violates international law"; and, second, because Sisson "reasonably believed the government's military involvement in Vietnam to be illegal." As a third ground, Sisson claimed that the Selective Service Act and its regulations were unconstitutional (a) because the procedures followed by local boards lacked due process, and (b) because compulsory conscription during peacetime was unnecessary, and stifled fundamental personal liberties. In support of the motion to dismiss, appellee stated:
"At the time I refused to submit to induction into the armed forces, I believed, as I believe today, that the United States military involvement in Vietnam is illegal under international law as well as under the Constitution and treaties of the United States. I believed then, and still believe, that my participation in that war would violate the spirit and the letter of the Nuremberg Charter. On the basis of my knowledge of that war, I could not participate in it without doing violence to the dictates of my conscience. "
At the hearing on appellee's motion to dismiss, the District Judge said that he had "an open mind" concerning appellee's first and third grounds. However, the court said there was "nothing to" the second ground, noting that what
"the defendant reasonably believes . . . cannot be raised in the way that you propose . . . , because that does not appear on the face of the indictment."
(App. 49.) The District Court later amplified this conclusion by saying:
"Point 2 is plainly premature, because nobody can test the issue as to whether defendant reasonably believes the government's military involvement in Vietnam is illegal without knowing what he reasonably believed, and what he believed is a question of evidence, and not a question which appears on the face of the indictment."
(App. 52.) (Emphasis supplied.) Defense counsel did not dispute the District Court's analysis, and noted that he had raised the issue in his motion to dismiss only "in the interest of economy," because "[i]t was not clear at the time I filed the motion that the government would challenge this fact." (App. 52.) The court expressed doubts concerning the Government's willingness to concede this fact, and, when asked by the court, the government counsel specifically stated his opposition to the motion to dismiss. The court thereupon found the "second ground" of the motion to dismiss without merit.
A short time after this hearing, the District Court issued two written opinions, 294 F.Supp. 511 and 515 (1968), that denied the other grounds of the motion to dismiss. After determining that appellee had the requisite standing to raise the issues involved, the court held that the political question doctrine foreclosed consideration of whether Congress could constitutionally draft for
an undeclared war, or could order Sisson to fight in the allegedly "genocidal war."
An order accompanying the second pretrial opinion also dealt with various offers of proof that defense counsel had made in an informal letter to the court, not part of the record. From the order, it appears that appellee's counsel stated he would
"offer evidence to show that [Sisson] properly refused to be inducted on the basis of his right of conscience, both statutory and constitutional."
Not understanding the scope of this rather ambiguous offer of proof, the District Court, in its order, ruled that, if Sisson wished to make a conscientious objector claim based on religious objections not to wars in general, but to the Vietnam war in particular, Sisson should make his offer of proof initially to the judge
"to elicit a ruling whether the First Amendment precludes the Congress from requiring one who has religious conscientious objections to the Vietnam war to respond to the induction order he received. If the Court rules favorably to defendant on the Constitutional issue of law, then both defense and prosecution are entitled to submit to the trier of fact evidence relevant to the question whether defendant indeed is a religious conscientious objector to the Vietnam war."
294 F.Supp. at 519.
At the trial, however, it appears that defense counsel did not try to prove that Sisson should have received a conscientious objector exemption, nor did he request a ruling on the First Amendment issues referred to by the trial court. Instead, it seems that the defense strategy was to prove that Sisson believed the Vietnam war to be illegal under domestic and international law, and that this belief was reasonable. If unable to get a direct adjudication of the legality of the war, the defense at least
hoped to convince the jury that Sisson lacked the requisite intent to "willfully" refuse induction. [Footnote 2]
There was evidence submitted at the trial that did bear on the conscientious objector issue, however. When asked why he had refused induction, Sisson emphasized that he thought the war illegal. He also said that he felt the Vietnam war was "immoral," "illegal," and "unjust," and went against "my principles, and my best sense of what was right." The court asked Sisson what the basis for his conclusions was, particularly what Sisson meant when he said the war was immoral. Sisson said that the war violated his feelings about (1) respect for human life, (2) value of man's freedom, and (3) the scale of destruction and killing consonant with the stated purposes of American intervention. Sisson also stated, in response to the trial judge's question, that his "moral values come from the same sources [the trial court had] mentioned, religious writings, philosophical beliefs."
The prosecution did not allow Sisson's testimony to stand without cross-examination. In apparent reliance
on the court's pretrial ruling that Sisson's beliefs concerning the war were irrelevant to the question of whether his refusal to submit to induction was willful, [Footnote 3] the government counsel concentrated on showing that Sisson had refused induction deliberately, of his own free will, and knowing the consequences. The prosecution also brought out that Sisson had failed to appeal his I-A classification when it had been issued, and that he had accepted, as an undergraduate, a II-S student classification.
In the final arguments to the jury, just as in the opening statements, neither counsel mentioned a religious or nonreligious conscientious objector issue. The defense argued that the key to the case was whether Sisson had "willfully" refused to submit to induction, and tried to suggest his beliefs about the war were relevant to this. The government lawyer simply pointed out the operative facts of Sisson's refusal. He also attacked Sisson's sincerity by pointing out the inconsistency between Sisson's broad statements that he opposed deferments because they discriminated against the poor,
see n 2, supra, and his willingness to accept a II-S deferment while he was at Harvard College. (See App. 187-188.)
The instructions to the jury made no reference to a conscientious objector claim, and the jury was not asked to find whether Sisson was "sincere" in his moral beliefs concerning the war. Instead, the trial court told the jury that the crux of the case was whether Sisson's refusal to submit to induction was "unlawfully, knowingly and willfully" done. [Footnote 4] The jury, after deliberating about 20 minutes, brought in a verdict of guilty.
After the trial, the defendant made a timely motion under Fed.Rule Crim.Proc. 34 to arrest the judgment on the ground that the District Court lacked jurisdiction. [Footnote 5] Pointing to the fact that the District Court had ruled before the trial that the political question doctrine prevented its consideration of defenses requiring an adjudication of the legality of the Vietnam war, the defense
argued that the court therefore lacked jurisdiction under Article III and the Due Process Clause to try the defendant for an offense to which the illegality of the war might provide a defense.
The District Court, in granting what it termed a motion in arrest of judgment, did not rule on the jurisdictional argument raised in the defense motion. Instead, the court ruled on what it termed defendant's "older contention" [Footnote 6] that the indictment did not charge an offense based on defendant's "never-abandoned" Establishment, Free Exercise, and Due Process Clause arguments relating to conscientious objections to the Vietnam war.
The court first stated the facts of the case, in effect making findings essential to its decision. The opinion
describes how Sisson's demeanor on the stand convinced the court of his sincerity. The court stated that
"Sisson's table of ultimate values is moral and ethical . . . [and] reflects quite as real, pervasive, durable, and commendable a marshalling of priorities as a formal religion."
The critical finding for what followed was that:
"What another derives from the discipline of a church, Sisson derives from the discipline of conscience."
". . . Sisson bore the burden of proving by objective evidence that he was sincere. He was as genuinely and profoundly governed by his conscience as would have been a martyr obedient to an orthodox religion."
297 F.Supp. at 905.
Building on these findings, the court first held that the Free Exercise and Due Process Clauses "prohibit the application of the 1967 draft act to Sisson to require him to render combat service in Vietnam" because as a "sincerely conscientious man," Sisson's interest in not killing in the Vietnam conflict outweighed "the country's present need for him to be so employed." The District Court also ruled that § 6(j) of the Selective Service Act, 50 U.S.C.App. 456(j) (1964 ed., Supp. IV), offends the Establishment Clause because it
"unconstitutionally discriminated against atheists, agnostics, and men, like Sisson, who, whether they be religious or not, are motivated in their objection to the draft by profound moral beliefs which constitute the central convictions of their beings."
297 F.Supp. at 911.
II
The Government bases its claim that this Court has jurisdiction to review the District Court's decision exclusively on the "arresting judgment" provision of the
Criminal Appeals Act, 18 U.S.C. § 3731. [Footnote 7] The relevant statutory language provides:
"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 arresting a judgment of conviction for insufficiency of the indictment or information, where such decision is based upon the invalidity or construction of the statute upon which the indictment or information is founded."
Thus, three requirements must be met for this Court to have jurisdiction under this provision. First, the decision of the District Court must be one "arresting a judgment of conviction." Second, the arrest of judgment
must be for the "insufficiency of the indictment or information." And third, the decision must be "based upon the invalidity or construction of the statute upon which the indictment or information is founded." [Footnote 8]
Because the District Court's decision rests on facts not alleged in the indictment, but instead inferred by the court from the evidence adduced at trial, we conclude that neither the first nor second requirement is met. [Footnote 9]
A
We begin with the first requirement: was the decision below one "arresting a judgment of conviction"? In using that phrase in the Criminal Appeals Act, Congress did not, of course, invent a new procedural classification. Instead, Congress acted against a common law background that gave the statutory phrase a well defined and limited meaning. An arrest of judgment was the technical term describing the act of a trial judge refusing to enter judgment on the verdict because of an error appearing on the face of the record that rendered the judgment
invalid. 3 W. Blackstone, Commentaries *393; 3 H. Stephen, New Commentaries on the Laws of England 628 (1st Am. ed. 1845); 2 J. Bishop, New Criminal Procedure 1285 (2d ed.1913).
For the purpose of this case, the critical requirement is that a judgment can be arrested only on the basis of error appearing on the "face of the record," and not on the basis of proof offered at trial. [Footnote 10] This requirement can be found in early English common law cases. In Sutton v. Bishop, 4 Burr. 2283, 2287, 98 Eng.Rep. 191, 193 (K.B. 1769), it was stated: "[T]he Court ought not to arrest judgments upon matters not appearing upon the face of the record, but are to judge upon the record itself." Once transported to the United States, [Footnote 11] this essential limitation of arrests of judgment was explicitly acknowledged by this Court. In 18 U. S. 149 (1820), the Court stated that "judgment can be arrested only for errors apparent on the record." And later, in Bond v. Dustin,@ 112 U. S. 604 (1884), the Court said,
"[A] motion in arrest of judgment can only be maintained for a defect apparent upon the face of the record, and the evidence is no part of the record for this purpose,"
id. at 112 U. S. 608. See 56 U. S. 356-357 (1854); United States v. Norris,@ 281 U. S. 619 (1930).
This venerable requirement of the common law has been preserved under the Federal Rules of Criminal Procedure, for the courts have uniformly held that, in granting
a motion in arrest of judgment under Rule 34, [Footnote 12] a district court must not look beyond the face of the record. E.g., United States v. Zisblatt, 172 F.2d 740 (C.A.2d Cir.), appeal dismissed on Government's motion, 336 U.S. 934 (1949); United States v. Lias, 173 F.2d 685 (C.A.4th Cir.1949); United States v. Bradford, 194 F.2d 137 (C.A.2d Cir.1952). See 2 C. Wright, Federal Practice and Procedure 571 (1969); 5 L. Orfield, Criminal Procedure Under the Federal Rules § 34:7 (1967). Therefore, whether we interpret the statutory phrase "decision arresting a judgment" as speaking "to the law, as it then was [in 1907] . . . as it had come down from the past," [Footnote 13] or do no more than interpret it as simply imposing the standards of Fed.Rule Crim.Proc. 34, [Footnote 14] a decision based on evidence adduced at trial cannot be one arresting judgment. [Footnote 15]
The court below clearly went beyond the "face of the record" in reaching its decision. As noted earlier, the opinion explicitly relies upon the evidence adduced at the trial, including demeanor evidence, for its findings that Sisson was "sincere" and that he was "as genuinely and profoundly governed by his conscience" as a religious conscientious objector.
To avoid the inescapable conclusion that the District Court's opinion was not an arrest of judgment, the Government makes two arguments. First, the Government suggests that these factual findings of the District Court, based on the evidence presented at trial, were not essential to its constitutional rulings, but instead only part of "the circumstantial framework" of the opinion below. (Jurisdictional Statement 9; see Brief 8.) This
cannot withstand analysis, however, for the factual findings were absolutely essential, under the District Court's own legal theory, to its disposition of the case. Without a finding that Sisson was sincerely and fundamentally opposed to participation in the Vietnam conflict, the District Court could not have ruled that under the Due Process and Free Exercise Clauses Sisson's interest in not serving in Vietnam outweighed the Government's need to draft him for such service. [Footnote 16]
Second, the Government argues that, even though the District Court made findings on evidence adduced at trial, the facts relied on were "undisputed." Adopting the language used by the court below, the Government claims that, "in substance, the case arises upon an agreed statement of facts." 297 F.Supp. at 904. The Government then goes on to argue that decisions of this Court have "recognized that a stipulation of facts by the parties in a criminal case" can be relied on by the District Court without affecting the jurisdiction for an appeal, citing United States v. Halseth, 342 U. S. 277 (1952), and United States v. Fruehauf, 365 U.S.
146 (1961). The Government then concludes that it would be exalting form over substance to hold there was no appeal in a case where the Government has not contested the facts, and yet allow an appeal to lie from a motion to dismiss resting upon a stipulation of the parties.
Preliminarily, it should be noted that this Court has never held that an appeal lies from a decision which depends not upon the sufficiency of the indictment alone, but also on a stipulation of the parties. In Halseth, the parties did enter into a stipulation for purposes of a motion to dismiss. But the facts in the stipulation were irrelevant to the legal issue of whether the federal anti-lottery statute reached game not yet in existence. Therefore, neither the District Court in dismissing the indictment nor this Court, in affirming its decision, had to rely on the stipulation. And, for purposes of deciding whether jurisdiction for an appeal under § 3731 existed, the Court obviously did not have to decide -- and it did not discuss -- whether reliance on a stipulation would make any difference. Insofar as United States v. Fruehauf, supra, the other case cited by the Government, is relevant at all it seems to point away from the Government's contention. In Fruehauf, this Court refused to consider the merits of an appeal under § 3731 from a District Court decision dismissing an indictment on the basis of a "judicial admission' culled from a pretrial memorandum" of the Government by the District Judge. Rather than penalizing the Government by dismissing the appeal, however, the Court simply exercised its discretion under 28 U.S.C. § 2106 by setting aside the ruling below and remanding the case for a new trial on the existing indictment.
Not only do the cases cited by the Government fail to establish its contention, but other authority points strongly in the opposite direction. In United States v. Norris, 281 U. S. 619 (1930), this Court said that a
"stipulation
was ineffective to import an issue as to the sufficiency of the indictment, or an issue of fact upon the question of guilt or innocence,"
because of "the rule that nothing can be added to an indictment without the concurrence of the grand jury," id. at 281 U. S. 622. While it is true that Norris is complicated by the fact that the defendant had entered a guilty plea, the Court said that, even "[i]f [the stipulation had been] filed before plea and [had been] given effect, such a stipulation would oust the jurisdiction of the court," id. at 281 U. S. 622-623. Norris, together with the policy, often expressed by this Court, that the Criminal Appeals Act should be strictly construed against the Government's right to appeal, see, e.g., United States v. Borden Co., 308 U. S. 188, 308 U. S. 192 (1939), makes it at least very doubtful whether the parties should, on the basis of a stipulation, be able to secure review under the "motion in arrest" provisions of § 3731.
We do not decide that issue, however, for there was nothing even approaching a stipulation here. Before the court's final ruling below, the parties did not in any way, formally or informally, agree on the factual findings made in its opinion. It is relevant to recall that, before the trial the government attorney specifically refused to stipulate whether Sisson sincerely believed the war to be illegal, and, if so, whether such a belief was reasonable. Moreover, given that the government attorney cross-examined Sisson, and later pointed out the inconsistency between Sisson's acceptance of a II-S student deferment and his claim that he disapproved of deferments as unfair, it hardly seems the Government accepted Sisson's sincerity insofar as it was an issue in the case. Therefore, far from being like a case with a formal stipulation between the parties, the most that can be said is that, after the District Court's decision, the Government chose to accept the opinion's findings of fact. Even assuming reliance on a formal stipulation were permissible,
it would still be intolerable to allow direct review whenever the District Court labels its decision a motion in arrest, and the Government merely accepts the lower court's factual findings made after a trial -- for this would mean the parties and the lower court simply could foist jurisdiction upon this Court.
B
The second statutory requirement, that the decision arresting judgment be "for insufficiency of the indictment," is also not met in this case. Senator Nelson, one of the sponsors of the Criminal Appeal Act, made it plain during the debates that this second element was an important limitation. He said:
"The arrest of judgment . . . on which an appeal lies is not a general motion covering all the grounds on which a judgment may be arrested. It is simply for arrest of judgment because of the insufficiency of the indictment -- that is, the failure of the indictment to charge a criminal offense."
41 Cong.Rec. 2756. (Emphasis supplied.) See also 40 Cong.Rec. 9033. Although the District Court's opinion recites as a conclusion that the indictment in this case did "not charge an offense" for purposes of Rule 34, surely the indictment alleged the necessary elements of an offense. [Footnote 17] The decision
below rests on affirmative defenses which the court thought Sisson could claim because of his beliefs. It has never been thought that an indictment, in order to be sufficient, need anticipate affirmative defenses, United States v. Fargas, 267 F.Supp. 452, 455 (D.C. S.D.N.Y.1967) ("Any questions as to the validity of the local board's refusal to grant conscientious objector exemption are matters of defense . . . [that] [t]here is no necessity for the indictment to negate. . . ."). Moreover, even assuming, arguendo, the correctness of the District Court's constitutional theory that sincere nonreligious objectors to particular wars have a constitutional privilege that bars conviction, the facts essential to Sisson's claim of this privilege do not appear from any recitals in the indictment. As the District Court itself said before trial, "[W]hat [Sisson] believed is a question of evidence, and not a question which appears on the face of the indictment." (App. 52.) In short, this indictment cannot be taken as insufficient, for, on the one hand, it recites the necessary elements of an offense, and, on the other hand, it does not allege facts that themselves demonstrate the availability of a constitutional privilege.
C
The same reason underlying our conclusion that this was not a decision arresting judgment -- i.e., that the disposition is bottomed on factual conclusions not found in the indictment, but instead made on the basis of evidence adduced at the trial -- convinces us that the decision was, in fact, an acquittal rendered by the trial court after the jury's verdict of guilty.
For purposes of analysis, it is helpful to compare this case to one in which a jury was instructed as follows:
"If you find defendant Sisson to be sincere, and if you find that he was as genuinely and profoundly governed by conscience as a martyr obedient to an orthodox religion, you must acquit him, because the government's interest in having him serve in Vietnam is outweighed by his interest in obeying the dictates of his conscience. On the other hand, if you do not so find, you must convict if you find that petitioner did willfully refuse induction."
If a jury had been so instructed, there can be no doubt that its verdict of acquittal could not be appealed under § 3731 no matter how erroneous the constitutional theory underlying the instructions. As Senator Knox said of the bill that was to become the Criminal Appeals Act:
"Mark this: it is not proposed to give the Government any appeal under any circumstances when the defendant is acquitted for any error whatever committed by the court."
"* * * *"
"The Government takes the risks of all the mistakes of its prosecuting officers and of the trial judge in the trial, and it is only proposed to give it an appeal upon questions of law raised by the defendant to defeat the trial and if it defeats the trial."
"The defendant gets the benefit of all errors in the trial which are in his favor, and can challenge all errors in the trial which are against him." 41 Cong.Rec. 2752.
Quite apart from the statute, it is, of course, well settled that an acquittal can
"not be reviewed, on error or otherwise, without putting [the defendant] twice in jeopardy, and thereby violating the Constitution. . . . [I]n this country, a verdict of acquittal, although not followed by
any judgment, is a bar to a subsequent prosecution for the same offence,"
United States v. Ball, 163 U. S. 662, 163 U. S. 671 (1896). [Footnote 18]
There are three differences between the hypothetical case just suggested and the case at hand. First, in this case, it was the judge -- not the jury -- who made the factual determinations. This difference alone does not support a legal distinction, however, for judges, like juries, can acquit defendants, see Fed.Rule Crim.Proc. 29. Second, the judge in this case made his decision after the jury had brought in a verdict of guilty. Rules 29(b) and (c) of the Federal Rules of Criminal Procedure, however, expressly allow a federal judge to acquit a criminal defendant after the jury "returns a verdict of guilty." And third, in this case, the District Judge labeled his post-verdict opinion an arrest of judgment, not an acquittal. This characterization alone, however, neither confers jurisdiction on this Court, see n 7, supra, nor makes the opinion any less dependent upon evidence adduced at the trial. In short, we see no distinction between what the court below did and a post-verdict directed acquittal. [Footnote 19]
III
The dissenting opinions of both THE CHIEF JUSTICE and MR. JUSTICE WHITE suggest that we are too niggardly in our interpretation of the Criminal Appeals Act, and each contends that the Act should be more broadly construed to give effect to an underlying policy that is said to favor review. This Court has frequently stated that the "exceptional right of appeal given to the Government by the Criminal Appeals Act is strictly limited to the instances specified," United States v. Borden Co., 308 U. S. 188, 308 U. S. 192 (1939), and that such appeals "are something unusual, exceptional, not favored," Carroll v. United States, 354 U. S. 394, 354 U. S. 400 (1957); see United States v. Keitel, 211 U. S. 370, 211 U. S. 39 (1908); United States v. Dickinson, 213 U. S. 92, 213 U. S. 103 (1909); cf. Will v. United States, 389 U. S. 90, 389 U. S. 96 (1967). The approach suggested by our Brothers seems inconsistent with these notions. Moreover, the background and legislative history of the Criminal Appeals Act demonstrate the compromise origins of the Act that justify the principle of strict construction this Court has always said should be placed on its provisions. Because the Criminal Appeals Act,
now 18 U.S.C. § 3731 (1964 ed., Supp. IV), [Footnote 20] has descended unchanged in substance from the original Criminal Appeals Act, which was enacted on March 2, 1907, 34 Stat. 1246, [Footnote 21] the crucial focus for this inquiry must be the legislative history of the 1907 Act. [Footnote 22]
A
Beginning in 1892 -- 15 years before the enactment of the Criminal Appeals Act -- the Attorneys General of the United States regularly recommended passage of legislation allowing the Government to appeal in criminal cases. [Footnote 23] Their primary purpose was perhaps best expressed by Attorney General Miller in his 1892 report:
"As the law now stands . . . it is in the power of a single district judge, by quashing an indictment, to defeat any criminal prosecution instituted by the Government. [Footnote 24]"
There was no progress, however, until President Theodore Roosevelt, outraged by a decision of
Judge Humphrey preventing the prosecution of the Beef Trust, [Footnote 25] made this proposed reform into a "major political issue," [Footnote 26] and demanded the enactment of legislation in his 1906 annual message to Congress. [Footnote 27]
The House, as one commentator has written, "was obedient to the presidential command." [Footnote 28] It passed, without debate, [Footnote 29] a very broad bill giving the Government the same right to appeal legal issues decided adversely to it as had earlier been accorded a criminal defendant. [Footnote 30] The Senate would not accept any such sweeping change of the traditional common law rule giving the Government no appeal at all. The substitute bill that the Senate Judiciary Committee reported out [Footnote 31] narrowed the House bill substantially, and limited the Government's right to appeal to writs of error from decisions (1) quashing an indictment or sustaining a demurrer to an indictment; (2) arresting judgment of conviction because of the insufficiency of the indictment, and (3) sustaining special pleas in bar when the defendant had not been put in jeopardy. Even as narrowed,
the bill met opposition on the floor, [Footnote 32] and the session closed without Senate action. [Footnote 33]
The next session, after the bill was again reported out of the Senate Judiciary Committee, [Footnote 34] it was debated for three days on the floor, and again met strong opposition. [Footnote 35] Reflecting the deep concern that the legislation not jeopardize interests of defendants whose cases were appealed by the Government, amendments were adopted requiring the Government to appeal within 30 days and to prosecute its cases with diligence, [Footnote 36] and allowing defendants whose cases were appealed to be released on their own recognizance in the discretion of the presiding judge. [Footnote 37] Various Senators were particularly concerned lest there be any possibility that a defendant who had already been through one trial be subjected to another trial after a successful appeal by the Government. [Footnote 38] In response to this concern, an amendment was then adopted requiring that a verdict in favor of the defendant not be set aside on appeal [Footnote 39] no matter how erroneous the legal theory upon which it might be based. [Footnote 40] For these purposes, it was made plain that it made no difference whether the verdict be the result of the jury's decision or that of the judge. [Footnote 41] Moreover, as we explore in more detail later,
the debates suggest that, apart from decisions arresting judgment, there were to be no appeals taken in any case in which jeopardy had attached by the impaneling of the jury. [Footnote 42] Finally, to limit further the scope of the Act to cases of public importance, the Government's right to appeal (under all but the special plea in bar provision) was confined to cases in which the ground of the District Court's decision was the "invalidity or construction of the statute upon which the indictment is founded." [Footnote 43]
With all these amendments, the Senate passed the bill without division on February 13, 1907, [Footnote 44] but the House, after referring the Senate's version to its Judiciary Committee, [Footnote 45] disagreed with the Senate bill and proposed a conference. [Footnote 46] The conference committee, apart from divesting the courts of appeals of jurisdiction to hear any government appeals, adopted the Senate version of the bill with merely formal changes. [Footnote 47] Both the Senate and the House approved the bill reported out by the committee, [Footnote 48] and, with the President's signature, the Criminal Appeals Act became law.
B
With this perspective, we now examine the arguments made in opposition to our conclusion. It is argued in
dissent that § 3731 "contemplates that an arrest of judgment is appropriate in other than a closed category of cases defined by legal history," and concludes that
"evidence adduced at trial can be considered by a district court as the basis for a motion in arrest of judgment when that evidence is used solely for the purpose of testing the constitutionality of the charging statute as applied,"
post at 399 U. S. 314 (dissenting opinion of THE CHIEF JUSTICE).
The dissenters propose, in effect, to create a new procedure -- label it a decision arresting judgment -- in order to conclude that this Court has jurisdiction to hear this appeal by the Government. The statutory phrase "decision arresting a judgment" is not an empty vessel into which this Court is free to pour a vintage that we think better suits present-day tastes. As we have shown, Congress defined our jurisdiction in the Criminal Appeals Act in terms of procedures existing in 1907. As a matter of interpretation, this Court has no right to give the statutory language a meaning inconsistent with its common law antecedents, and alien to the limitations that today govern motions in arrest of judgment under Rule 34. [Footnote 49]
Radical reinterpretations of the statutory phrase "decision arresting a judgment?" are said to be necessary in order to effectuate a broad policy, found to be underlying the Criminal Appeals Act, that this Court review important legal issues. The axiom that courts should endeavor to give statutory language that meaning that nurtures the policies underlying legislation is one that
guides us when circumstances not plainly covered by the terms of a statute are subsumed by the underlying policies to which Congress was committed. Care must be taken, however, to respect the limits up to which Congress was prepared to enact a particular policy, especially when the boundaries of a statute are drawn as a compromise resulting from the countervailing pressures of other policies. Our disagreeing Brothers, in seeking to energize the congressional commitment to review, ignore the subtlety of the compromise that limited our jurisdiction, thereby garnering the votes necessary to enact the Criminal Appeals Act. [Footnote 50]
In this regard, the legislative history reveals a strong current of congressional solicitude for the plight of a criminal defendant exposed to additional expense and anxiety by a government appeal and the incumbent possibility of multiple trials. Criminal appeals by the Government "always threaten to offend the policies behind the double jeopardy prohibition," Will v. United States, supra, at 389 U. S. 96, even in circumstances where the Constitution itself does not bar retrial. Out of a collision between this policy concern and the competing policy favoring review, Congress enacted a bill that fully satisfied neither the Government nor the bill's opponents. [Footnote 51] For the Criminal Appeals Act, thus born of compromise, manifested a congressional policy to provide review
in certain instances, but no less a congressional policy to restrict it to the enumerated circumstances.
Were we to throw overboard the ballast provided by the statute's language and legislative history, we would cast ourselves adrift, blind to the risks of collision with other policies that are the buoys marking the safely navigable zone of our jurisdiction. As we have shown, what the District Court did in this case cannot be distinguished from a post-verdict acquittal entered on the ground that the Government did not present evidence sufficient to prove that Sisson was insincere. A primary concern of the bill that emerged into law was that no appeal be taken by the government from an acquittal, no matter how erroneous the legal theory underlying the decision. Moreover, going beyond the present case, the theory of those in disagreement would allow a trial judge to reserve to himself the resolution of disputes concerning facts underlying a claim that, in particular circumstances, a speech or protest march were privileged under the First Amendment, a practice plainly inconsistent with a criminal defendant's jury trial rights.
C
Quite apart from the arresting judgment provision, it is also argued that we have jurisdiction under the "motion in bar" provision of the Criminal Appeal Act. We think it appropriate to address ourselves to this contention, particularly in light of the fact that we asked the parties to brief that issue, [Footnote 52] even though our holding that the decision below was an acquittal is sufficient to dispose of the case.
The case law under the "motion in bar" provision is very confused, [Footnote 53] and this Court has not settled on a general approach to be taken in interpreting this provision. [Footnote 54]
Even under the most expansive view, however, a motion in bar cannot be granted on the basis of facts that would necessarily be tried with the general issue in the case. [Footnote 55] In this case, there can be no doubt that the District Court based its findings on evidence presented in the trial of the general issue. As we have shown earlier, the court's findings were based on Sisson's testimony and demeanor at the trial itself. Moreover, a defense based on Sisson's asserted constitutional privilege not to be required to fight in a particular war would, we think, necessarily be part of the "general issue" of a suit over a registrant's refusal to submit to induction. As THE CHIEF JUSTICE says in his dissenting opinion, "establishing the appropriate classification is actually an element of the Government's case," post at 399 U. S. 324, once a defendant raises a defense challenging it. We think a defense to a pre-induction suit based on conscientious objections that require factual determinations is so intertwined with the general issue that it must be tried with the general issue, United States v. Fargas, 267 F.Supp. 452, 455 (1967) (pretrial motion to dismiss under Rule 12(b)(1) on the basis of an affidavit denied because "the validity of the [conscientious objector] defense which Fargas now raises . . . will require the consideration of factual questions which are embraced in the general issue"); see United States v. Ramos, 413 F.2d 743, 744 n. 1 (C.A. 1st Cir.1969) (evidentiary hearing for pretrial motion to dismiss indictment not appropriate means to consider validity of defense based on conscientious objection because "[q]uestions regarding the validity of
appellant's classification should have been raied as a defense at the trial," citing Fargas with approval). [Footnote 56]
There is, in our view, still another reason no appeal can lie in this case under the "motion in bar" provision. We construe the Criminal Appeals Act as confining the
Government's right to appeal except for motions in arrest of judgment -- to situations in which a jury has not been impaneled, even though there are cases in which a defendant might constitutionally be retried if appeals were allowed after jeopardy had attached. Because the court below rendered its decision here after the trial began, and because that decision was not, as we have shown, an arrest of judgment, we therefore conclude there can be no appeal under the other provisions of § 3731.
We reach this conclusion for several reasons. First, although the legislative history is far from clear, we think it was the congressional expectation that, except for motions in arrest -- which, as we have shown, could never be based on evidence adduced at trial -- the ruling to which the bill related would occur before the trial began. [Footnote 57] The language of the "motion in bar" provision
itself limits appeals to those granted "when the defendant has not been put in jeopardy." We read that limitation to mean exactly what it says -- i.e., no appeal from a motion in bar is to be granted after jeopardy attaches. Although the legislative history shows much disagreement and confusion concerning the meaning of the constitutional prohibition against subjecting a defendant to double jeopardy, [Footnote 58] there was little dispute over the then-settled notion that a defendant was put into jeopardy once the jury was sworn. [Footnote 59] To read this limitation as no more than a restatement of the constitutional prohibition, as suggested by MR. JUSTICE WHITE, renders it completely superfluous. No Senator thought that Congress had the power under the Constitution to provide for an appeal in circumstances in which that would violate the Constitution. [Footnote 60]
Our conclusion draws strength from the fact that the Government itself has placed exactly this same interpretation
on the Act. The Department of Justice, the agency for whose benefit the original bill was enacted, first placed this construction on the statute shortly after the bill was enacted, and has consistently abided by it in the more than 60 years that have since passed. As the Solicitor General stated in his brief:
"The Department of Justice has consistently taken the view that the plea in bar section limits the government's right of appeal to the granting of such pleas before a jury has been sworn. Soon after passage of the original Act, the 1907 Report of the Attorney General urged that the omission in the Act of a governmental right to appeal from post-jeopardy rulings be remedied by revising the Act so as to require counsel for the defendant to raise and argue questions of law prior to the time when jeopardy attached,"
Brief 17. Later, after describing the opinion in Zisblatt, supra, in which the Second Circuit certified an appeal to this Court to determine whether the phrase "not been put in jeopardy" merely incorporated the constitutional limitation, or instead should be taken literally, the Government's brief states:
"The then Solicitor General, being of the view that the statute barred appeals from the granting of motions in bar after jeopardy had attached, moved to dismiss the appeal, and the appeal was dismissed (336 U.S. 934). The Department of Justice has thereafter adhered to that position, and the government has never sought to appeal in these circumstances. [Footnote 61]"
This interpretation, in our view, deserves great weight.
In light of (1) the compromise origins of the statute, (2) the concern with which some Senators viewed the retrial of any defendant whose trial terminated after the jury was impaneled, and (3) the interpretation placed on the Act shortly after its passage [Footnote 62] that has been consistently followed for more than 60 years by the Government, we think that the correct course is to construe the statute to provide a clear, easily administered test: except for decisions arresting judgment, there can be no government appeals from decisions rendered after the trial begins.
IV
Clarity is to be desired in any statute, but, in matters of jurisdiction, it is especially important. Otherwise 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 Criminal Appeals Act is a failure. Born of compromise, and reflecting no coherent allocation of appellate responsibility, [Footnote 63] 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
which, in most instances, fail to coincide with the procedural categories of the Federal Rules of Criminal Procedure. Not only does the statute create uncertainty by its requirement that one analyze the nature of the decision of the District Court in order to determine whether it falls within the class of common law distinctions for which an appeal is authorized, [Footnote 64] but it has also engendered confusion over the court to which an appealable decision should be brought. [Footnote 65]
The Solicitor General, at oral argument in this case, forthrightly stated that
"there are few problems which occur so frequently or present such extreme technical difficulty in the Solicitor General's office [as] in the proper construction of the Criminal Appeals Act. [Footnote 66]"
We share his dissatisfaction with this statute. Nevertheless, until such time as Congress decides to amend the statute, this Court must abide by the limitations imposed by this awkward and ancient Act.
We conclude that the appeal in this case must be dismissed for lack of jurisdiction.
It so ordered.
MR. JUSTICE BLACK concurs in the judgment of the Court and Part IIC of the opinion.
MR. JUSTICE BLACKMUN took no part in the consideration or decision of this case.
* MR. JUSTICE BLACK joins only 399 U. S. MR. JUSTICE BRENNAN, MR. JUSTICE STEWART, and MR. JUSTICE MARSHALL join the entire opinion.
We have today granted certiorari in Gillette v. United States (No. 1170), and Negre v. Larsen (No. 1669, Misc.), in order to consider the "selective" conscientious objector issue that underlies the case now before us but which we cannot reach because of our conclusion that we have no jurisdiction to entertain this direct appeal.
Not only did the defense itself avoid advancing any theory or proof that Sisson deserved conscientious objector status, but there are even indications that the defense purposely attempted to keep the issue out of the case. For example, at one point in the trial, the Marine officer who called Sisson for induction stated that Sisson had told him at the time that he was refusing induction because of religious belief, and his "conscientious objector status." (App. 143.) Later, when questioned by his own counsel, Sisson not only denied having the conversation with the officer but also stated that he had never applied for C.O. status (1) because he could not honestly claim "conscientious objection to war in any form as it is put on the Form 150", and (2) because he believed "the system of exemptions and deferments [to be] unequal and [to discriminate] against those who do not have education . . . or money." Sisson stated flatly that he therefore "could not accept such deferment." (App. 147-150.)
Among the various offers of proof made by Sisson's attorney before the trial was one to show that Sisson "reasonably believed the Vietnam war to be illegal," and that he therefore lacked the requisite intent to "willfully" refuse induction. In the pretrial order, the trial judge ruled that:
"'Wilfully,' as used in the indictment, means intentionally, deliberately, voluntarily. If the Government proves defendant intentionally refused to comply with an order of his draft board, in accordance with the statute, to submit to induction, it is not open to defendant to offer as an excuse that he regarded the war as illegal, that is, contrary to either domestic Constitutional law or international law. . . . [I]n a prosecution for willfully refusing to obey an induction order, evidence with respect to belief is admissible only to the extent it bears upon the issue of intent, as distinguished from motive or good faith."
294 F.Supp. at 519.
The key instruction was given as follows:
"The only question which, as a matter of law, a Jury has a right to consider is whether the defendant, if he failed to perform an act required under the statute and regulations, was acting knowingly in the sense of with mental awareness [and] willfully in the sense of intentionally and with free choice."
"He may have all the views he likes of a political, ethical, religious or legal nature. They may be as reasonable as sometime dissents of the Supreme Court are reasonable, and sometime the majority Opinions are reasonable, but, as long as the law stands as it now stands, his motivation, his good faith, and the like are not in the least relevant to the question whether he is guilty or not."
(App. 193.)
Defendant first submitted a motion in arrest of judgment March 26 -- five days after the trial. Two days later, he substituted an amended motion in arrest "in lieu of" his original motion. This first amended motion differed only in detail from the original. Both were based on the jurisdictional argument described in the text, and neither made any claim based on the Establishment or Free Exercise Clause.
The District Court was apparently referring to Sisson's pretrial "offer [of] evidence" with reference to Sisson's "right of conscience." See supra at 399 U. S. 273; 294 F.Supp. at 519. It does not appear that any contention based on Sisson's right of conscience was raised at trial, or made in the motion to arrest judgment, see supra, n 5. Possibly in recognition of this, the District Court noted in its opinion that "[i]t would have been better practice" for Sisson's attorney to have made "a more detailed reference" in his motion in arrest to his "earlier" arguments. The court stated that, "[n]o doubt, defendant will seasonably make his motion in arrest even clearer." On April 3 -- two days after the District Court's decision -- Sisson's attorney moved to amend his motion in arrest to make the requested grounds conform with those already stated in the opinion. The District Court granted this motion to amend nunc pro tunc as of April 1 -- the date of its opinion.
Because we conclude that the District Court's decision was not in fact, one arresting judgment, see infra, we have no occasion to decide whether the District Court incorrectly characterized these issues as having been raised by the defendant, and if so, whether the 1966 amendment to Fed.Rule Crim.Proc. 34, requiring that a motion in arrest of judgment be granted "on motion of a defendant," precludes a district court from granting such a motion on an issue not raised by the defendant's motion.
For the text, see n 20, infra.
It should be noted that, at the conclusion of his opinion, the District Judge stated that he was granting the motion in arrest because "[i]n the words of Rule 34, the indictment of Sisson does not charge an offense.'" He then stated in conclusory terms that his decision was one
"'arresting a judgment of conviction for insufficiency of the indictment . . . [which] is based upon the invalidity . . . of the statute upon which the indictment . . . is founded'"
for purposes of 18 U.S.C. § 3731, and that the Government could therefore take a direct appeal to this Court.
The label attached by the District Court to its own opinion does not, of course, decide for us the jurisdictional issue, however.
"We must be guided in determining the question of appealability of the trial court's action not by the name the court gave [its decision] but by what in legal effect it actually was,"
United States v. Waters, 84 U.S.App.D.C. 127, 128, 175 F.2d 340, 341, appeal dismissed on Government's motion, 335 U.S. 869 (1948); United States v. Zisblatt, 172 F.2d 740, 742 (C.A.2d Cir.), appeal dismissed on Government's motion, 336 U.S. 934 (1949); see United States v. Hark, 320 U. S. 531, 320 U. S. 536 (1944); United States v. Blue, 384 U. S. 251, 384 U. S. 254 (1966).
Although all three conditions must be met for the Government to appeal a case directly to this Court, as long as the first requirement is met, the Government can appeal to a Court of Appeals under a separate provision of § 3731 allowing an appeal "[f]rom a decision arresting a judgment of conviction except where a direct appeal to the Supreme Court of the United States is provided. . . ."
It i arguable that the third requirement is not met, since the District Court's decision was not "based upon the invalidity or construction" of 50 U.S.C.App. § 462(a) (1964 ed., Supp. IV) -- the statutory provision "upon which the indictment . . . is founded." As a matter of sound construction, however, "statute upon which the indictment . . . is founded" should be read to include the entire statute, and not simply the penalty provisions. See United States v. Socony Mobil Oil Co., 252 F.2d 420 (C.A. 1st Cir.), appeal dismissed per stipulation, 356 U.S. 925 (1958); cf. United States v. Mersky, 361 U. S. 431 (1960); see also Friedenthal, Government Appeals in Federal Criminal Cases, 12 Stan.L.Rev. 71, 75 (1959).
In early days, the "face of the record" simply included the material found on the "judgment roll." See United States v. Zisblatt, 172 F.2d 742. In a criminal case today, it has been thought to include "no more than the indictment, the plea, the verdict . . . and the sentence." United States v. Bradford, 194 F.2d 197, 201 (C.A.2d Cir.), cert. denied, 343 U.S. 979 (1952).
This Court first recognized the existence of motions in arrest of judgment in United States v. Cantril, 4 Cranch 167 (1807).
Fed.Rule Crim.Proc. 34 provides:
"The court on motion of a defendant shall arrest judgment if the indictment or information does not charge an offense or if the court was without jurisdiction of the offense charged. The motion in arrest of judgment shall be made within 7 days after verdict or finding of guilty, or after plea of guilty or nolo contendere, or within such further time as the court may fix during the 7-day period."
United States v. Zisblatt, supra, at 742.
United States v. Lias, supra, at 687.
None of the cases relied on by the Government even hints that evidence presented at the trial can be the basis for a motion in arrest of judgment. In United States v. Green, 350 U. S. 415 (1956), there was no disagreement between the majority and dissenters on the rule that direct review is impossible if the decision below is based upon facts arising from the trial. Instead, the majority and dissent simply disagreed as to whether the District Court's decision had relied on evidence at the trial. Compare the majority opinion, 350 U.S. at 350 U. S. 418 and 350 U. S. 421, with the dissent, 350 U.S. at 350 U. S. 421. In United States v. Bramblett, 348 U. S. 503 (155), also cited by the Government, the indictment specified that the appellee had made a fraudulent claim against the Disbursing Office of the House of Representatives in violation of 18 U.S.C. § 1001, which forbids the willful falsification of any material statement "in any matter within the jurisdiction of any department or agency of the United States." The District Court arrested judgment on the ground that the House Disbursing Office was not a "department or agency" for purposes of the statute, and, on appeal, this Court reversed. Neither the District Court nor this Court relied in any way upon the evidence submitted at the trial in determining the scope of the statutory phrase "department or agency" found in 18 U.S.C. § 1001. Finally, the Government refers to United States v. Waters, 84 U.S.App.D.C. 127, 175 F.2d 340 (1948). In that case, the District Court held an indictment did not charge an offense because it alleged only that the appellee was carrying a gun, and not that he was carrying a gun without a license. However, the District Court called its opinion the grant of a motion of acquittal. The United States appealed to the Court of Appeals, which held that the decision was a motion in arrest, stating that the "question of appealability" turned not on "the name the [district] court gave [the decision], but by what, in legal effect, it actually was." The Court of Appeals then certified the case to this Court, since it felt the motion in arrest involved an "interpretation" of the underlying statute, but the appeal was dismissed on the motion of the United States, 335 U.S. 869 (1948).
The factual determinations would also appear essential for the District Court's alternative ground of decision based on the Establishment Clause. That holding rests necessarily upon the finding that Sisson, though nonreligious, "was a genuinely and profoundly governed by his conscience as would have been a martyr obedient to an orthodox religion." Without this finding, Sisson would have no standing to assert the underinclusiveness of § 6(j) of the Act as a defense to his prosecution. Whether factual determinations made only for purposes of deciding questions of standing, particularly if made before trial, would offend the requirements that motions in arrest must be based on errors on the face of the record is an issue inappropriate for decision in this case. Because of our determination that the District Court's free exercise holding was, in effect, an acquittal, there is no need to decide whether the alternative Establishment Clause ruling would be appealable if it stood alone.
Compare 50 U.S.C.App. § 462(a) (1964 ed., Supp. IV) with the allegations of the indictment:
"That on or about April 17, 1968, at Boston, in the District of Massachusetts, JOHN HEFFRON SISSON, JR., of Lincoln, in the District of Massachusetts, did unlawfully, knowingly and willfully fail and neglect and refuse to perform a duty required of him under and in the execution of the Military Selective Service Act of 1967 and the rules, regulations and directions duly made pursuant thereto, particularly 32 Code of Federal Regulations 1632.14, in that he did fail and neglect and refuse to comply with an order of his local draft board to submit to induction into the armed forces of the United State; in violation of Title 50, Appendix, United States Code, Section 462."
This principle would dictate that, after this jurisdictional dismissal, Sisson may not be retried.
Our conclusion does not, as suggested in dissent, post at 399 U. S. 327 (dissenting opinion of MR. JUSTICE WHITE), rest on the fact the District Court "might have" sent the case to the jury on the instruction referred to in the text, but, instead, on what it did do -- i.e., render a legal determination on the basis of facts adduced at the trial relating to the general issue of the case, see infra at 399 U. S. 301. Neither dissenting opinion explains what "large and critical" difference, post at 399 U. S. 329, exists between its expansive notion of what constitutes a decision arresting judgment and a post-verdict acquittal entered by the judge after the jury has returned a verdict of guilty pursuant to Fed.Rule Crim.Proc. 29.
We think untenable the view of MR. JUSTICE WHITE that, under the principles of this opinion today. the "Court should not have had jurisdiction in United States v. Covington," 395 U. S. 57 (1969), on the ground that the pretrial dismissal in that case
"would amount to an acquittal because the judge might have given the case to the jury under instructions that it should acquit if it found the facts necessary to sustain the defendant's privilege -- e.g., that he was not one of the registered marihuana dealers whose conduct was legal under state law,"
post at 399 U. S. 327 (emphasis in original). As we note, infra, n. 56 what the District Court did do in Covington was to dismiss an indictment before trial without an evidentiary hearing. Moreover, in disposing of the Government's contentions on the merits, this Court held that there was no need in that case for a pretrial evidentiary hearing on the defendant's motion to dismiss (much less a need to submit any factual issue to a jury) because (1) "there is no possibility of any factual dispute with regard to the hazard of incrimination", and (2) "the Government [had] never alleged the existence of a factual controversy" concerning appellee's nonwaiver of his privilege against self-incrimination, 395 U.S. at 395 U. S. 61.
The statute provides, 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 instance: "
"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 insufficiency of the indictment or information, where such decision is based upon the invalidity or construction of the statute upon which the indictment or information is founded."
"From the decision or judgment sustaining a 'motion in bar', when the defendant has not been put in jeopardy."
The statute goes on to provide for (1) Government appeals to the courts of appeals for all other decisions (a) setting aside or dismissing indictments, or (b) arresting judgments; (c) granting a pretrial suppression motion; (2) release on bail; (3) transfer of cases from this Court to a court of appeals or vice versa when an appeal has erroneously been taken to the wrong court.
34 Stat. 1246 provided in pertinent part:
". . . That a writ of error may be taken by and on behalf of the United States from the district or circuit courts direct to the Supreme Court of the United States in all criminal cases, in the following instances, to-wit: "
"From a decision or judgment quashing, setting aside, or sustaining a demurrer to, any indictment, or any count thereof, where such decision or judgment is based upon the invalidity, or construction of the statute upon which the indictment is founded."
"From a decision arresting a judgment of conviction for insufficiency of the indictment, where such decision is based upon the invalidity or construction of the statute upon which the indictment is founded."
"From the decision or judgment sustaining a special plea in bar, when the defendant has not been put in jeopardy."
Between 1907 and the present day, Congress has amended the Act several times. These include a 1948 amendment that brought the procedural vocabulary of the statute into formal conformity with the Federal Rules of Criminal Procedure, 62 Stat. 844. Although "special plea in bar" thus became ""motion in bar"," and "decision . . . quashing . . . or sustaining a demurrer to, any indictment" became "decision . . . dismissing any indictment," the Reviser's Notes plainly show that this amendment was not meant to change the Act's coverage, H.R.Rep. No. 304, 80th Cong., 1st Sess., A177; see United States v. Apex Distributing Co., 270 F.2d 747, 755 (C.A. 9th Cir.1959).
A 1942 amendment did increase this Court's jurisdiction under the Act by including cases involving informations as well as indictments, 56 Stat. 271. Other amendments have (1) abolished review by writ of error and substituted the right of appeal, 45 Stat. 54 (1928); (2) given the courts of appeals jurisdiction for appeals from decisions in the same common law categories as those originally provided, but which do not involve the construction or validity of the underlying statute, 56 Stat. 271.
See the Attorney General's Annual Reports for 1892, pp. xxiv-xxv; for 1893, p. xxvi; for 1894, p. xxix; for 1899, p. 33; for 1900, p. 40; for 1903, p. vi; for 1905, p. 10; for 19, p. 4. See generally Kurland, The Mersky Case and the Criminal Appeals Act: A Suggestion for Amendment of the Statute, 28 U.Chi.L.Rev. 419, 446-449 (1961); F. Frankfurter & J. Landis, The Business of the Supreme Court 114-117 (1928).
1892 Rep. Atty.Gen. xxiv.
United States v. Armour Co., 142 F.8d 8 (D.C. N.D. Ill.1906).
. See Frankfurter & Landis, supra, n 23, at 117; Kurland, supra, n 23, at 449.
. 41 Cong.Rec. 22.
Kurland, supra, n 23, at 450.
40 Cong.Rec. 5408.
The text of the House bill appears at 40 Cong.Rec. 5408. It gave the United States the same right of review by writ of error as was then accorded a criminal defendant, but further provided that, if, on appeal, any error were found, the defendant should retain the advantage of any verdict in his favor. With neither debate nor a division, the bill passed the House on April 17, 1906. Ibid.
See S.Rep. No. 3922, 59th Cong., 1st Sess. (1906).
See 40 Cong.Rec. 9033.
Id. at 9122.
41 Cong.Rec. 1865; S.Rep. No. 5650, 59th Cong., 2d Sess. (1907).
41 Cong.Rec. 2190-2197; 2744-2763; 2818-2825.
Id. at 2194.
Id. at 2195-2197.
See id. at 2749-2762.
See id. at 2819.
See id. at 2752.
When asked whether the substance of his amendment was that there was to be no appeal and retrial after the defendant had been "acquitted by the verdict of a jury," the sponsor of the amendment, Senator Rayner, stated:
"I have in the amendment no such words as 'acquitted by the jury.' I have nothing to do with the jury. He may be acquitted by a magistrate. . . . I do not care by what tribunal he is acquitted. . . ."
Id. at 2749.
See infra at 399 U. S. 302-307.
See 41 Cong.Rec. at 2822, 2823.
Id. at 2834.
Id. at 3044-3047.
Id. at 3647.
See H.R.Rep. No. 8113, 59th Cong., 2d Sess.
41 Cong.Rec. 3994, 4128.
It appears that the dissenters have not only "outgrown" the statutory limitations of a "decision arresting a judgment" for purposes of § 3731, but also the limitations of Rule 34.
Professor Kurland characterized the statute as
"a compromise among several divergent forces. The division in the Senate was primarily between those who wanted limited review and those who wanted none. The division between the House and Senate was between those who wanted complete review and those who wanted limited review."
Kurland, supra, n 23, at 454.
See, e.g., 1907 Rep.Atty.Gen. 4. See infra at 399 U. S. 306.
See 396 U.S. 812 (1969).
At common law, a special plea in bar was ordinarily used to raise three defenses -- autrefois acquit, autrefois convict, and pardon -- and there is language in some of our cases that indicates that, apart from these defenses, a plea in bar was not appropriate "to single out for determination in advance of trial matters of defense either on questions of law or fact," United States v. Murdock, 284 U. S. 141, 284 U. S. 151 (1931). There are cases consistent with the narrow common law definition that indicate, for example, that a defense based upon the statute of limitations could not be raised by a "special plea in bar," United States v. Kissel, 218 U. S. 601, 218 U. S. 610 (1910); United States v. Barber, 219 U. S. 72, 219 U. S. 78-79 (1911). On the other hand, it appear the Court accepted jurisdiction under § 37311 in appeals from decisions granting special pleas in bar based on a statute of limitations defense, with no explanation of the apparent inconsistency. See United States v. Goldman, 277 U. S. 229, 277 U. S. 236-237 (1928); see also United States v. Rabinowich, 238 U. S. 78 (1915). And, in United States v. Mersky, 361 U. S. 431 (1960), there was no decision of the Court on what was a "motion in bar", and the concurring opinion of MR. JUSTICE BRENNAN and the dissenting opinion of MR. JUSTICE STEWART indicated disagreement on this issue. Compare 361 U.S. at 361 U. S. 441-443 with id. at 361 U. S. 455-458. To add to the uncertainty, arguably in United States v. Murdock, supra, and certainly in United States v. Blue, 384 U. S. 251, 384 U. S. 253-254 (1966), and United States v. Covington, 395 U. S. 57, 395 U. S. 59 n. 2 (1969), the Court took jurisdiction and considered the merits of appeals from district court dismissals based on self-incrimination defenses on the ground that the decisions below had sustained "motion in bar" for purposes of the Criminal Appeals Act -- even though Murdock itself stated that this defense is not appropriately raised by a special plea in bar. 284 U.S. at 284 U. S. 151.
In United States v. Mersky, 361 U. S. 431 (190), there was no decision of the Court concerning what approach should be taken. MR. JUSTICE BRENNAN suggested that the category include any decision that barred reprosecution if upheld, id. at 361 U. S. 441-443, while MR. JUSTICE STEWART thought the provision should be confined to those decisions that would fall within the compass of the common law "special plea in bar," id. at 361 U. S. 455-458. See generally Kurland, supra, n 23.
The dismissal provision of Fed.Rule Crim.Proc. 12, which MR. JUSTICE BRENNAN, in his Mersky concurrence, saw as having "swept away the old pleas," 361 U.S. at 361 U. S. 442, itself limits a dismissal to those defenses "capable of determination without the trial of the general issue," Fed.Rule Crim.Proc. 12(b)(1).
Nowhere does United States v. Covington, supra, suggest, as argued in dissent, that there might be jurisdiction under the "motion in bar" provision of § 3731 in circumstances where the parties "tr[ied] facts to the judge that were relevant to the motion in bar, and separate from the general issue," post at 399 U. S. 332 (dissenting opinion of MR. JUSTICE WHITE). Our Brother WHITE reaches this conclusion by taking a quotation from Covington out of context, and confusing that opinion's disposition of the merits of the Government's appeal with the Court's jurisdictional holding.
In Covington, the District Court, before trial without any evidentiary hearing, dismissed an indictment bottomed on the Marihuana Tax Act, 26 U.S.C. § 4744(a)(1), on the ground that the "privilege against self-incrimination necessarily would provide a complete defense to the prosecution," id. at 395 U. S. 58. The Government appealed, claiming the Court had jurisdiction under both the dismissal and the "motion in bar" provisions of § 3731. The Court found jurisdiction in the alternative under either provision. The only discussion of the "motion in bar" jurisdictional issue, found in a footnote, was as follows:
"If the dismissal rested on the ground that the Fifth Amendment privilege would be a defense, then the decision was one 'sustaining a motion in bar.' See United States v. Murdock, 284 U. S. 141 (1931),"
395 U.S. at 395 U. S. 59 n. 2.
Having thus disposed of the jurisdictional issue, the Court proceeded to the merits of the Government's appeal and, inter alia, considered
"whether such a plea of the privilege [against self-incrimination] may ever justify dismissal of an indictment, and, if so, whether this is such an instance,"
id. at 395 U. S. 60. In this context, the Court said:
"Federal Rule of Criminal Procedure 12(b)(1) states that: '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 alleged offense would be of no assistance in determining the validity of the defense. Rule 12(b)(4) allows the District Court, in its discretion, to postpone determination of the motion to trial, and permits factual hearings prior to trial if necessary to resolve issues of fact peculiar to the motion."
Id. at 395 U. S. 60.
Taken in full context, the quotation used by MR. JUSTICE WHITE, post at 399 U. S. 332, plainly had reference to a district court's power under Fed.Rule Crim.Proc. 12 to dismiss an indictment, and nothing whatsoever to do with the quite distinct issue of the scope of the jurisdictional provisions of § 3731.
That the Court was there concerned with only the merits of appeal is clear from what follows. After suggesting that, in most circumstances, a motion to dismiss an indictment brought under 26 U.S.C. § 4744 would not require any factual inquiry, the Court stated that, once a defendant asserted his privilege, a trial court should dismiss the indictment without an evidentiary hearing "unless the Government can rebut the presumption [of nonwaiver of the privilege] by showing a need for further factual inquiries." Id. at 395 U. S. 61. In applying that principle to the merits of the case before it, the Court affirmed the District Court's action below because: (1) "there [was] no possibility of any factual dispute with regard to the hazard of incrimination", and (2) "the Government has never alleged the existence of a factual controversy" concerning the issue of whether "appellee [had] waived his privilege." Ibid.
The Court in Covington did not say that a defense based on the privilege against self-incrimination where there were facts in dispute could, in all cases, be decided without consideration of the general issue. And, more importantly for present purposes, nowhere does the opinion in Covington even hint that a dismissal requiring a pretrial evidentiary hearing, or a dismissal motion properly deferred to the trial of the general issue would be appealable under the "motion in bar" provision of the Criminal Appeals Act. The Court in Covington had no such jurisdictional issues before it, and the opinion does not discuss such issues.
See 40 Cong.Rec. 9033. In this exchange, Senator Spooner said: "I understand this [bill] applies only to questions which arise before the impaneling of the jury." Senator Nelson agreed that the bill was so limited, and, obviously thinking he was saying the same thing, said the bill applied only "[w]here the party has not been put in jeopardy." After being reminded of the "arrest of judgment" provision, Senator Nelson acknowledged that this was an exception, but, obviously trying to minimize the scope of the exception, he pointed out that the only motions in arrest of judgment that could be appealed were those granted "for insufficiency of indictment; not for any other ground." Ibid.
See 41 Cong.Rec. 2191 (Sen. Nelson) ("I wish to say further that, where a jury has been impaneled and where the defendant has been tried, an appeal does not lie"), id. at 2748 (Sen. Patterson) ("[A] motion in arrest of judgment . . . is the only one of the three cases in which there can have been a trial. . . . [I]n the other two cases . . . , the motions must ex necessitati be made before jeopardy attaches"); id. at 2752 (Sen. Patterson) ("These proceedings are all defendant's acts before a verdict to prevent a trial, except the motion in arrest of judgment, which is defendant's act after a verdict against him to defeat a judgment on the verdict") (emphasis supplied).
Without explaining his inconsistency, Senator Patterson later expressed the view that, under the proposed bill, the Government would have been able to appeal the decision in the famed Chicago Beef Trust Case, because the jury's verdict was based on the "special plea in bar filed" in that case, not on the defendants' guilt or innocence, id. at 2753. Underlying this conclusion -- later disputed by Senator Nelson, see id. at 2757 -- was Patterson's expectation that, "in the case of a special plea in bar that went against the Government, the defendant had not been in jeopardy on the merits of the case," id. at 2753 (emphasis supplied). Unlike the defendants in the Beef Trust Case -- who Patterson understood not to have been tried on the general issue of their guilt or innocence -- plainly Sisson has been put "in jeopardy on the merits of the case." Our Brother WHITE admits as much by suggesting he could not be retried. Therefore, even under Patterson's broader reading of the statute, an appeal would not lie in this case.
See, e.g., 41 Cong.Rec. 2745-2763.
See, e.g., 40 Cong.Rec. 9033; 41 Cong.Rec. 2192; id. at 2751.
See 41 Cong.Rec. 2751 (Sen. Knox) ("[I]f I thought there was a single line, or a sentence, or a clause contained in this bill which, by any court, would be construed to place a man twice in jeopardy, I would vote to cut it out, not because there would be any necessity for cutting it out, as it would be invalid under the Constitution of the United States, but I would vote to cut it out upon the ground that it would not be an artistic and intelligent bill with such a provision within its borders.")
The provision granting an appeal from a decision dismissing or setting aside an indictment does not contain a similar phrase limiting appeals to cases where the defendant has not yet been put in jeopardy, but we agree with the conclusion reached by the Government that the same limitation applies. See n. 57 supra.
Brief 19. It should be noted that, at the Government's request, a proposed Amendment to § 3731 has been introduced in Congress to remove this limitation. The proposed statute, which avoids common law terminology, would allow an appeal from a decision made after the jury was sworn in all cases where the Double Jeopardy Clause would permit it. See H.R. 14588, 91st Cong., 1st Sess., 115 Cong.Rec. H10274 (daily ed. Oct. 29, 1989).
See 1907 Rep.Atty.Gen. 4; see also Hearing on Granting Appeals by the United States from Decisions Sustaining Motions to Suppress Evidence, before Subcommittee No. 2 of the House Committee on the Judiciary, 83 Cong., 2d Sess., ser. 15, p. 11 (1954).
Motions in bar, for example, can only be appealed to this Court irrespective of whether the case involves the validity or construction of a statute.
See supra, nn 53-54
See, e.g., United States v. Zisblatt, supra; United States v. Brodson, 234 F.2d 97 (C.A. 7th Cir.1956). See generally Friedenthal, supra, n 9, at 83-88.
Tr. of Oral Arg. 11.
MR. CHIEF JUSTICE BURGER, with whom MR. JUSTICE DOUGLAS and MR. JUSTICE WHITE join, dissenting.
Both the Government and Sisson have argued that this Court has jurisdiction to review the District Court's
action by virtue of the "arrest of judgment" clause in the Criminal Appeals Act, 18 U.S.C. § 3731, which provides for a direct appeal to this Court
"[f]rom a decision [1] arresting a judgment of conviction [2] for insufficiency of the indictment or information, [3] where such decision is based upon the invalidity or construction of the statute upon which the indictment or information is founded."
In rejecting the arguments of the parties, the Court holds that we have no jurisdiction to hear this appeal, opting for the view that the "arrest of judgment" clause carries with it all of its common law antecedents, and the the present case does not meet the criteria required by the common law. My disagreement with the Court's result and rationale is prompted by a fundamental disagreement with the Court's mode of analysis and its excessive reliance on ancient practices of common law England long superseded by Acts of Congress.
Section 3731 appears to set three requirements for jurisdiction in this Court: (1) the decision from which the appeal is taken must be one "arresting a judgment of conviction"; (2) the decision must be engendered by the "insufficiency of the indictment or information", and (3) it must be "based upon the invalidity or construction of the statute upon which the indictment or information is founded."
I
The first requirement, that the decision from which the appeal is taken must be one "arresting a judgment of conviction," can without undue violence to its language be construed as being encrusted with the lore of centuries of common law jurisprudence, and the Court has so construed it. The form of an "arrest of judgment" was well established at an early date in the common law's development; Blackstone was able to describe a clearly defined motion in arrest as a device that was procedurally
appropriate after the guilty verdict had been rendered, but before the judge had imposed sentence. The court, in an early form of permitting allocution, traditionally asked the prisoner if he had "anything to offer why judgment should not be awarded against him." 4 W. Blackstone, Commentaries *375. The prisoner could then respond by offering exceptions to the indictment, "as for want of sufficient certainty in setting forth either the person, the time, the place, or the offence." Ibid. If the prisoner was successful, the court entered an arrest or stay of the judgment. Also, under the common law, it was settled that
"the Court ought not to arrest judgments upon matters not appearing upon the face of the record, but are to judge upon the record itself, that their successors may know the grounds of their judgment."
Sutton v. Bishop, 4 Burr. 2283, 2287, 98 Eng.Rep. 191, 193 (K.B. 1769) (emphasis added). The record included
"nothing more than the judgment roll, and indeed, the common law knew nothing of the evidence taken at a trial until the Statute of Westminster allowed exceptions to be sealed and a bill of exceptions to be brought up with the roll on writ of error."
United States v. Zisblatt, 172 F.2d 740, 741-742 (C.A.2d Cir.) (L. Hand, C.J.), appeal dismissed on Government's motion, 336 U.S. 934 (1949).
Much, if not all, of the common law learning was transplanted to the United States. As early as 1807, the Court recognized the existence of the motion in 8 U. S. 149 (1820). See also Carter v. Bennett, 15 How. 354 (1854); Bond v. Dustin,@ 112 U. S. 604 (1884).
Whether § 3731's requirement of an arrest of judgment incorporates the common law jurisprudence, or
whether it is viewed as simply looking to the standards of Rule 34, Fed.Rules Crim.Proc., [Footnote 2/1] the Court has indicated that it believes that the decision of the District Court here was not one "arresting a judgment" because it was based on evidence adduced at the trial, notwithstanding the precise -- and I suggest, purposeful -- delineations of an astute District Judge quite as familiar with history and the background of this statute as are we.
The Solicitor General also has conceded that § 3731 uses the term "arrest of judgment" in its common law sense. However, he has sought to avoid the inescapable implications of this concession by arguing that the District Court,
"in granting appellee's motion, did not base it action wholly on the allegations of the indictment, but used as a partial predicate for its constitutional rulings the undisputed fact, which appeared from the evidence at trial, that appellee is a non-religious conscientious objector to participation in the Vietnam conflict. [Footnote 2/2]"
The Solicitor General's argument in favor of jurisdiction seeks to avoid the District Court's reliance on evidence by pointing out that the District Court's decision did not purport to be a judgment on the merits, i.e., that the evidence was not sufficient to show that appellee committed the offense charged, and thus was not a directed acquittal. He submits that the District Court used Sisson's sincere, nonreligious form of conscientious
objection to a particular war as the basis for its ruling that the indictment was constitutionally infirm a applied to Sisson. Since the evidence of conscientious objection was undisputed at trial, [Footnote 2/3] and is undisputed now, the Solicitor General argues that the use of the facts here was akin to a stipulation of facts by parties in a criminal case, and that this Court has recognized that such a stipulation may be treated by the District Court as supplementing the indictment (like a bill of particulars). He relies on United States v. Halseth, 342 U. S. 277 (1952), and United States v. Fruehauf, 365 U. S. 146 (1961). [Footnote 2/4]
My disagreement with the Court is based upon much more fundamental grounds than those which the Solicitor General would use to avoid the strictures of the common law concept of an arrest of judgment. In my view, the Criminal Appeals Act contemplates that an arrest of judgment is appropriate in other than a closed category of cases defined by legal history. Specifically, there is no reason for the Court today to read into that
class of cases all of the niceties of what might or might not have been included in the "judgment roll" at common law. We have outgrown those formalisms.
I conclude that evidence adduced at trial can be considered by a district court as the basis for a motion in arrest of judgment when that evidence is used solely for the purpose of testing the constitutionality of the charging statute as applied. I do so because the legislative history surrounding the passage of the Criminal Appeals Act abundantly shows Congress contemplated review by this Court in such a case. The reasons for the Court's "face of the record" limitation, in the technical common law form of an arrest of judgment, have long since disappeared, and the Court's reliance on a policy disfavoring appeals under the Criminal Appeals Act is misplaced.
The Court's reasoning pays scant attention to the purpose of the Criminal Appeals Act and to the problem that Congress was attempting to solve in 1907, when the Act was passed. The legislative history of the Criminal Appeals Act reflects the strong desire by a number of Attorneys General of the United States for an appellate remedy in selected criminal cases. [Footnote 2/5] Such a remedy had been provided in England and in some States, but the lack of such a remedy for the Federal Government had
"left all federal criminal legislation at the mercy of single judges in the district and circuit courts. This defect became all the more serious because it became operative just at the beginning of the movement for increasing social control through criminal machinery. [Footnote 2/6]"
Congress, however, was not stirred to complete its action on the
proposals until a federal district court rendered its decision in United States v. Armour & Co., 142 F.8d 8 (D.C. N.D. Ill.1906), sustaining a motion to dismiss and ending a Sherman Act prosecution in which President Theodore Roosevelt had a great interest.
The House passed, without debate, a bill that gave the United States in all criminal prosecutions "the same right of review by writ of error that is given to the defendant," provided that the defendant not twice be put in jeopardy for the same offense. 40 Cong.Rec. 5408 (1906). The Senate, however, refused to accept the House bill. Rather, it Judiciary Committee offered as a substitute a more complicated bill which ultimately was refined to become the Criminal Appeals Act. In relevant part, the substitute would have allowed a writ of error by the United States "[f]rom the decision arresting a judgment of conviction for insufficiency of the indictment." S.Rep. No. 3922, 59th Cong., 1st Sess. (1906). When the substitute came to the floor of the Senate, the floor leader for the bill, Senator Knute Nelson of Minnesota, explained the need for the legislation in constitutional terms:
"[S]ometimes an indictment is set aside on the ground that the law under which the indictment was found is held to be unconstitutional. The object [of this bill] is to allow the Government to take the case up and get a ruling of the Supreme Court."
40 Cong.Rec. 8695 (1906) (emphasis added). The bill was then put over in the absence of unanimous consent for consideration. When the bill returned to the floor, questions were raised with respect to the arrest of judgment provision regarding the prohibition against double jeopardy. Unanimous consent to proceed again was withdrawn, and the bill was again put over. 40 Cong.Rec. 9033 (1906).
An amended bill was reported out of committee in January of 1907. When this bill reached the floor, a
spirited three-day debate took place respecting its impact on an accused. Indeed, among the questions discussed was whether a defendant who succeeded on a motion in arrest of judgment could again be prosecuted. See 41 Cong.Rec. 2192-2193 (1907). But almost none of the debate concerned the scope of an "arrest of judgment." Senator Knox, who had been the Attorney General before going to the Senate, did say that "this legislation is along the line of the law as it is understood in England under the common law." 41 Cong.Rec. 2751 (1907). However, this statement apparently referred to the right of the Government to appeal, for it was immediately followed by the observation:
"In England, the Crown always had the right to an appeal in a criminal case. In my own State, since its foundation, the right has been conceded."
Ibid. The manifest, overriding concern of the Senate was with enacting legislation that would permit appeals as to important legal questions always subject to the bar against double jeopardy, [Footnote 2/7] and this concern carried over to the arrest of judgment provision. [Footnote 2/8] Indeed, the major limiting amendment adopted by the Senate restricted the right of review by the Government in criminal cases to constitutional issues and questions of construction of the statute under which the charge was brought. See 41 Cong.Rec. 2819-2820 (1907).
Another illustration of what the Senate thought it was doing in describing this category of appeals comes from the emphasis on distinguishing a "motion in arrest" from an "acquittal." See 41 Cong.Rec. 2748 (1907). From the latter, to be sure, there was to be no appeal -- no matter how many errors the trial judge had committed along the way to the acquittal in the form of erroneous rulings or other trial errors. As the majority has noted, an amendment was adopted which required that verdicts in favor of the defendant could not be set aside on appeal. 41 Cong.Rec. 2819 (1907). The text of the amendment as adopted read:
"Provided, That if upon appeal or writ of error it shall be found that there was error in the rulings of the court during the trial, a verdict in favor of the defendant shall not be set aside."
Ibid. The proponent of the amendment, Senator Rayner, expressed the view that the amendment was directed toward a "verdict of not guilty, whether by the court or the jury. . . ." 41 Cong.Rec. 2747 (1907) (emphasis added). Here, of course, Sisson was not acquitted, but was found guilty by the jury. Further, the Court's use of the Rayner amendment to support a narrow reading of the "arrest of judgment" provision is incongruous in the extreme in light of the fact that the amendment had no substantive effect, and was later deleted from the Act. See MR. JUSTICE WHITE's opinion, post at 399 U. S. 344 n. 11.
"Trial errors" respecting the factfinding function -- which affect only the particular trial -- were distinguished from errors of law that had been separated from the trial on the merits, and that involved constitutional rulings that could affect future attempts of the Government to prosecute under the same statute:
"The defendant gets the benefit of all errors in the trial which are in his favor, and can challenge all errors in the trial which are against him. It is
certainly not too much when he attacks the trial itself or the law under which it is conducted to give the people the right to a decision of their highest courts upon the validity of statutes made for their protection against crime."
41 Cong.Rec. 2752 (1907) (remarks of Senator Knox).
"The motion in arrest of judgment can only be made -- it is wholly inapplicable to any other condition than that of conviction -- to a verdict of guilty. It is interposed after a verdict of guilty and before judgment for an alleged legal reason that will arrest the court in pronouncing judgment upon the verdict."
41 Cong.Rec. 2753 (1907) (remarks of Senator Patterson).
The Senate passed the bill with the acquired floor amendments on February 13, 1907. 41 Cong.Rec. 2825 (1907). The House insisted on a conference, but the conference committee adopted the Senate version. The resulting conference committee bill was ultimately adopted. 41 Cong.Rec. 3994, 4128 (1907).
Notably, the debates on the Senate bill which formed the basis of the Act demonstrate a total lack of concern with the technical niceties of ancient common law forms of pleading. And, far from distinguishing cases where a congressional act was invalidated on its face from cases where it was invalidated as applied to a situation that Congress clearly intended to reach, the debates appear to contemplate both cases as appropriate for appeal to this Court -- certainly the evil aimed at -- and the rationale of the Act is broad enough to encompass both situations. Appeal was to be for the purpose of deciding "constitutional questions," "questions of law" which, if the district judge's decision were permitted to stand, could lead to conflict and different treatment under the same
criminal statutes in different parts of the country, with no opportunity under existing law for resolution in this Court. The Government was to have a chance to "settle the law as to future cases of like character." 41 Cong.Rec. 2194 (1907) (emphasis added).
It is difficult to imagine a case more closely fitting into this rationale than that now before us. The class of nonreligious conscientious objectors is not likely to be a small one. Indeed, under the impetus of this holding, it is likely to grow. Yet whether or not a member of that class can constitutionally be punished for refusing to submit to induction now depends on where that person is tried, and by whom. That one district judge may entertain a d