Petitioners were arrested on warrants and subsequently were
indicted in the United States District Court for the District of
Columbia for violations of local lottery laws and for conspiracy to
violate them. After indictment, each filed a pretrial motion under
Rule 41(e) of the Federal Rules of Criminal Procedure for
suppression of evidence seized from his person at the time of his
arrest. The District Court granted the motions on the ground that
probable cause had been lacking for issuance of the arrest
warrants. Urging that, without the evidence that had been seized
and suppressed, it would have to dismiss the indictment for want of
sufficient evidence to proceed with the prosecution, the Government
appealed to the United States Court of Appeals for the District of
Columbia Circuit, which reversed the District Court.
Held: the appeal should have been dismissed; the
Government had no right to appeal from such an order in such
circumstances, either under the general statutes relating to the
appellate jurisdiction of all federal courts of appeals or under
the special statutes relating to the appellate jurisdiction of the
United States Court of Appeals for the District of Columbia
Circuit. Pp.
354 U. S.
396-415.
1. The suppression order here involved is not sufficiently
separable and collateral to the criminal case to be "final," and
hence appealable under the general authority of 28 U.S.C. § 1291,
giving the federal courts of appeals jurisdiction of appeals from
"all final decisions" of the district courts. Pp.
354 U. S.
399-408.
(a) Appellate jurisdiction in a specific federal court over a
given type of case is dependent on authority expressly conferred by
statute. Pp.
354 U. S.
399-400.
(b) In federal jurisprudence, at least, appeals by the
Government in criminal cases are something unusual, exceptional and
not favored. Pp.
354 U. S.
400-403.
(c) The suppression order here involved, having been entered
after indictment and in the district of trial, has an interlocutory
character, and therefore cannot be appealed by the Government as a
"final decision." Pp.
354 U. S.
403-405.
Page 354 U. S. 395
(d) The suppression order here involved does not have sufficient
characteristics of independence and completeness to make it
appealable as an order separable from, or collateral to, the
criminal case. Pp.
354 U. S.
403-408.
2. The suppression order here involved is not a "final" order
within the criminal case, and thus appealable under the statutory
provisions applicable in the District of Columbia in criminal
cases. Pp.
354 U. S.
408-415.
(a) Even today, criminal appeals by the Government in the
District of Columbia are not limited to the categories set forth in
18 U.S.C. § 3731, although, as to cases covered by that nationwide
jurisdictional statute, its explicit directions will prevail over
the terms of § 935 of the District of Columbia Code of 1901, now
found in §23-105 of the District of Columbia Code (1951 ed.). Pp.
354 U. S.
408-411.
(b) Under § 226 of the District of Columbia Code of 1901, the
practice had developed of allowing appeals from interlocutory
orders in criminal cases; but § 226 was replaced in 1949 by the
nationwide appellate jurisdiction provisions of 28 U.S.C. §§1291
and 1292, which do not authorize interlocutory appeals in criminal
cases. Pp.
354 U. S.
411-413.
(c) The standard of "final decisions" as prerequisite to appeal
is not something less or different under 18 U.S.C. § 1291 as the
successor to § 226 of the District of Columbia Code of 1901 than it
is under § 1291 as the successor to the nationally applicable
appeal provisions of the Judicial Code. P.
354 U. S.
413.
(d) The statutory provisions applicable to the District of
Columbia, subject to the further limitations stated therein, afford
the Government an appeal only from an order against it which
terminates a prosecution or makes a decision whose distinct or
plenary character meets the standards of the precedents applicable
to finality problems in all federal courts. Pp.
354 U. S.
413-415.
98 U.S.App.D.C. 244, 234 F.2d 679, reversed and remanded.
Page 354 U. S. 396
MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.
Petitioners were arrested in February, 1954 on John Doe
warrants, and subsequently were indicted in the United States
District Court for the District of Columbia, with two others, for
violations of the local lottery laws and for conspiracy to carry on
a lottery. [
Footnote 1] After
indictment, each filed a pretrial motion under Rule 41(e) of the
Federal Rules of Criminal Procedure [
Footnote 2] asking for the suppression of evidence seized
from his person at the time of his arrest. The District Court
granted petitioners' motions to suppress on the ground that
probable cause had been lacking for the issuance of the arrest
warrants directed against them. [
Footnote 3]
United States v. Hall, 126 F. Supp.
620. The Government
Page 354 U. S. 397
appealed the order for suppression to the United States Court of
Appeals for the District of Columbia Circuit. The indictment
against petitioners had not been dismissed, but the Government
informed the Court of Appeals that, without the "numbers"
paraphernalia seized and suppressed, it would lack sufficient
evidence to proceed on any of the counts involving petitioners, and
therefore would have to dismiss the indictment. Petitioners
challenged the jurisdiction of the Court of Appeals to hear an
appeal by the Government from an order of the District Court
granting a motion to suppress that was made while an indictment was
pending in the same District Court. The Court of Appeals sustained
its jurisdiction on the authority of its prior decision in
United States v. Cefaratti, [
Footnote 4] and reversed the district judge on the merits,
holding that there had been probable cause to justify the issuance
of warrants for the arrest of petitioners. 98 U.S.App.D.C. 244, 234
F.2d 679. We granted certiorari, limited to the question of
appealability of the suppression order, because of the importance
of that question to the administration of the federal criminal
laws. 352 U.S. 906.
The Government contends, most broadly, that the suppression
order of any District Court is "final" and sufficiently separable
and collateral to the criminal case to be appealable under the
general authority of 28 U.S.C. § 1291, notwithstanding that such an
order is not listed
Page 354 U. S. 398
among the few types of orders in criminal cases from which the
Government may appeal pursuant to 18 U.S.C. § 3731. [
Footnote 5] More narrowly, failing acceptance
of the position
Page 354 U. S. 399
just stated, the Government maintains that an order of
suppression is, within the criminal case, a "final" order, and thus
appealable under the statutory provisions for appeals by the
Government in criminal cases that are applicable exclusively in the
District of Columbia. [
Footnote
6] It will be convenient to discuss the issues in the same
order.
I
It is axiomatic, as a matter of history as well as doctrine,
that the existence of appellate jurisdiction in a specific federal
court over a given type of case is dependent upon authority
expressly conferred by statute. And since the jurisdictional
statutes prevailing at any given time are so much a product of the
whole history of both growth and limitation of federal court
jurisdiction since the First Judiciary Act, 1 Stat. 73, they have
always been interpreted in the light of that history and of the
axiom that clear statutory mandate must exist to found
jurisdiction. It suffices to cite as authority for these principles
some of the cases in which they have been applied to the general
problem now before us, the availability of appellate review sought
by the Government in criminal cases.
E.g., 7 U.
S. More, 3 Cranch 159;
United States v.
Sanges, 144 U. S. 310;
In re Heath,
144
Page 354 U. S. 400
U.S. 92;
Cross v. United States, 145 U.
S. 571;
United States v. Burroughs,
289 U. S. 159.
[
Footnote 7]
There is a further principle, also supported by the history of
federal appellate jurisdiction, that importantly pertains to the
present problem. That is the concept that, in the federal
jurisprudence, at least, [
Footnote
8] appeals by the Government in criminal cases are something
unusual, exceptional, not favored. The history shows resistance of
the Court to the opening of an appellate route for the Government
until it was plainly provided by the Congress, and after that a
close restriction of its uses to those authorized by the statute.
Indeed, it was 100 years before the
defendant in a
criminal case, even a capital case, was afforded appellate review
as of right. [
Footnote 9]
And
Page 354 U. S. 401
after review on behalf of convicted defendants was made certain
by the Acts of 1889 and 1891, the Court continued to withhold an
equivalent remedy from the Government, despite the existence of
colorable statutory authority for permitting the Government to
appeal in those important cases where a prosecution was dismissed
upon the trial court's opinion of the proper construction or the
constitutional validity of a federal statute. [
Footnote 10] When the Congress responded to the
problem of such cases in the Criminal Appeals Act of 1907, now 18
U.S.C. § 3731,
Page 354 U. S. 402
it did so with careful expression of the limited types of orders
in criminal cases as to which the Government might thenceforth have
review. [
Footnote 11] It was
as late as 1942 before the Criminal Appeals Act was amended to
permit appeals by the Government from decisions, granting dismissal
or arrest of judgment, other than those grounded
Page 354 U. S. 403
by the trial court upon the construction or invalidity of a
statute. [
Footnote 12]
It is true that certain orders relating to a criminal case may
be found to possess sufficient independence from the main course of
the prosecution to warrant treatment as plenary orders, and thus be
appealable on the authority of 28 U.S.C. § 1291, without regard to
the limitations of 18 U.S.C. §3731, just as, in civil litigation,
orders of equivalent distinctness are appealable on the same
authority without regard to the limitations of 28 U.S.C. § 1292.
[
Footnote 13] The instances
in criminal cases are very few. The only decision of this Court
applying to a criminal case the reasoning of
Cohen v.
Beneficial Loan Corp., 337 U. S. 541,
held that an order relating to the amount of bail to be exacted
falls into this category.
Stack v. Boyle, 342 U. S.
1. Earlier cases illustrated, sometimes without
discussion, that, under certain conditions, orders for the
suppression or return of illegally seized property are appealable
at once, as where the motion is made prior to indictment, [
Footnote 14] or in a different
district from that in which the trial will occur, [
Footnote 15] or after dismissal of the
Page 354 U. S. 404
case, [
Footnote 16] or
perhaps where the emphasis is on the return of property rather than
its suppression as evidence. [
Footnote 17] In such cases, as appropriate, the
Government as well as the moving person has been permitted to
appeal from an adverse decision.
Burdeau v. McDowell,
256 U. S. 465.
But a motion made by a defendant after indictment and in the
district of trial has none of the aspects of independent just
noted, as the Court held in
Cogen v. United States,
278 U. S. 221. As
the opinion by Mr. Justice Brandeis explains, the denial of a
pretrial motion in this posture is interlocutory in form and real
effect, and thus not appealable at the instance of the defendant.
We think the granting of such a motion also has an interlocutory
character, and therefore cannot be the subject of an appeal by the
Government. In the present case, the
Page 354 U. S. 405
Government argues, as it offered to stipulate below, that the
effect of suppressing the evidence seized from petitioners at their
arrests will be to force dismissal of the indictment for lack of
evidence on which to go forward. But that is not a necessary result
of a suppression order relating to particular items of evidence,
nor have we been shown whether it will be the result in practice in
the generality of cases. Appeal rights cannot depend on the facts
of a particular case. The Congress necessarily has had to draw the
jurisdictional statutes in terms of categories. To fit an order
granting suppression before trial in a criminal case into the
category of "final decisions" requires a straining that is not
permissible in the light of the principles and the history
concerning criminal appeals, especially Government appeals, that
are outlined above and more fully set forth in the cases cited.
[
Footnote 18] Other Courts
of Appeals that have considered the problem have concluded that
this order is not "final" or appealable at the behest of the
Government. [
Footnote
19]
Page 354 U. S. 406
The Government exhorts us not to exalt form over substance, in
contending that the present order has virtually the same attributes
as the suppression orders found reviewable in earlier cases. We do
not agree that the order entered in a pending criminal case has the
same characteristics of independence and completeness as a
suppression order entered under other circumstances. Moreover, in a
limited sense, form
is substance with respect to
ascertaining the existence of appellate jurisdiction. While it is
always necessary to categorize a situation realistically -- to
place a given order according to its real effect -- it remains true
that the categories themselves were defined by the Congress in
terms of form. Many interlocutory decisions of a trial court may be
of grave importance to a litigant, yet are not amenable to appeal
at the time entered, and some are never satisfactorily reviewable.
In particular is this true of the Government in a criminal case,
for there is no authority today for interlocutory appeals,
[
Footnote 20] and, even if
the Government had a general right to review upon an adverse
conclusion of a case after trial, much of what it might complain of
would have been allowed up in the sanctity of the jury's verdict.
[
Footnote 21]
Page 354 U. S. 407
If there is serious need for appeals by the Government from
suppression orders, or unfairness to the interests of effective
criminal law enforcement in the distinctions we have referred to,
it is the function of the Congress to decide whether to initiate a
departure from the historical pattern of restricted appellate
jurisdiction in criminal cases. [
Footnote 22] We must decide the case on the statutes
that
Page 354 U. S. 408
exist today, in the light of what has been the development of
the jurisdiction. It is only through legislative resolution,
furthermore, that peripheral questions regarding the conduct of
Government appeals in this situation can be regulated. Some of the
problems directed at legislative judgment involve such particulars
as confinement or bail of the defendant, acceleration of the
Government's appeal, and discretionary limitation of the right to
take the appeal. [
Footnote
23]
II
The Court of Appeals sustained its jurisdiction on the basis of
statutory provisions peculiar to the District of Columbia. Here
again, the jurisdictional statutes are a product of historical
development, and must be interpreted in that light. During the
century from 1801 to 1901, the Congress several times organized and
reorganized the courts of the District of Columbia, independently
of the federal courts in the States. It is not necessary here to
relate the chronology of shuffled jurisdictions and
Page 354 U. S. 409
nomenclature. [
Footnote
24] It is sufficient to note that, from 1838 on, review of a
final judgment of conviction in the criminal trial court was
available in the appellate tribunal of the District. [
Footnote 25] However, the appellate
judgment was not further reviewable in this Court in any manner
during this period.
In re Heath, 144 U. S.
92;
Cross v. United States, 145 U.
S. 571. When the Acts of 1889 and 1891 opened up
appellate review of criminal convictions in the federal courts
throughout the country at first directly to this Court, it was held
that those statutes did not apply to cases originating in the
District of Columbia.
Ibid.
In 1901, the Congress codified the laws of the District of
Columbia, including those relating to the judicial system. District
of Columbia Code, 31 Stat. 1189. Criminal jurisdiction was vested
in the trial court of general jurisdiction, then known as the
Supreme Court of the District of Columbia. [
Footnote 26] A single section of the statute, §
226, conferred appellate jurisdiction on the Court of Appeals over
decisions of the Supreme Court in general terms, apparently
including criminal decisions. A party aggrieved could take an
appeal from a final order or judgment, and was entitled to
allowance of an appeal from an interlocutory order affecting
possession of property. In addition, the Court of Appeals could
allow an
Page 354 U. S. 410
appeal, in its discretion, from any other interlocutory order
when it was shown "that it will be in the interest of justice to
allow such appeal." [
Footnote
27]
Section 935 of the Code of 1901 established this new
provision:
"In all criminal prosecutions, the United States or the District
of Columbia, as the case may be, shall have the same right to
appeal that is given to the defendant, including the right to a
bill of exceptions:
Provided, That if on such appeal 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."
31 Stat. 1341. The legislative history of the Code does not
indicate why the Government was now given a right of appeal, but we
may surmise that the draftsmen of the Code desired to adopt a
procedural technique that was then in force in a large number of
States. [
Footnote 28] The
"same right of appeal that is given to the defendant" would be
defined by reference to § 226, of course, in cases coming up from
the Supreme Court. After the Congress conferred on the United
Page 354 U. S. 411
States a more limited right of appeal from the District Courts
in the Criminal Appeals Act of 1907, running directly to this
Court, it was held that the 1907 Act was not applicable to cases
decided in the Supreme Court of the District of Columbia. There, §
935 provided "the complete appellate system."
United States v.
Burroughs, 289 U. S. 159,
289 U. S. 164.
When the Criminal Appeals Act was broadened in 1942, it was then
first made applicable to the District of Columbia. [
Footnote 29] But the text of § 935 was not
repealed at that time, nor was it repealed in connection with the
1948 revisions of the Judicial Code and the Criminal Code.
[
Footnote 30] It may be
concluded, then, that, even today, criminal appeals by the
Government in the District of Columbia are not limited to the
categories set forth in 18 U.S.C. § 3731, although, as to cases of
the type covered by that special jurisdictional statute, its
explicit directions will prevail over the general terms of § 935,
now found in the District of Columbia Code, 1951 Edition, as §
23-105.
United States v. Hoffman, 82 U.S.App.D.C. 153, 161
F.2d 881,
decided on merits, 335 U. S. 335 U.S.
77.
Meanwhile, under the general provisions of § 226 of the 1901
Code, the practice had developed of allowing appeals from
interlocutory orders in criminal cases. A particular instance
disturbed the Congress in 1926, and it immediately passed a statute
to eliminate the practice. It is apparent from the legislative
history that it was interlocutory appeals for the defendant that
were considered anomalous in a federal court and undesirable from
the viewpoint of prompt dispatch of criminal prosecutions,
[
Footnote 31] but the new
provision in terms applied equally to the possibility of an
interlocutory appeal's being allowed
Page 354 U. S. 412
to the Government through the combined provisions of § 226 and
§935. The 1926 enactment, as it now reads in the District of
Columbia Code, 1951 Edition, § 17-102, states:
"Nothing contained in any Act of Congress shall be construed to
empower the United States Court of Appeals for the District of
Columbia to allow an appeal from any interlocutory order entered in
any criminal action or proceeding or to entertain any such appeal
heretofore or hereafter allowed or taken."
44 Stat. 831, as amended. 48 Stat. 926. The allowance of appeal
technique no longer exists as to cases coming from the District
Court (the former Supreme Court), but, if this section does not
continue to have life by force of the words "or hereafter . . .
taken," it does not matter, for § 226 itself was replaced in 1949
[
Footnote 32] by the
nationwide appellate jurisdiction provisions of Title 28 of the
U.S. Code, § 1291 and §1292, which do not authorize interlocutory
appeals in criminal cases.
Thus the statutory context in which the court below made its
ruling is seen to be this: subject to stated limitations, the
Government has the "same right of appeal" as the defendant in
criminal cases in the District Court for the District of Columbia,
but no party can appeal an interlocutory order in such cases. In
United States v. Cefaratti, 91 U.S.App.D.C. 297, 202 F.2d
13, the Court of Appeals reconciled these rules by holding:
"Since defendants may appeal from 'final decisions,' to say that
'the United States . . . shall have the same right of appeal that
is given to the defendant . . . ' means that . . . the United
States may appeal from final decisions. It does not mean that the
United States cannot appeal from a final decision
Page 354 U. S. 413
unless it so happens that an opposite decision would also have
been final."
91 U.S.App.D.C. at 302, 202 F.2d at 17. Applying this reasoning
to orders for the suppression of evidence, the Court of Appeals
concluded that such an order had the requisite finality and
independence of the criminal case to be appealable under 28 U.S.C.
§ 1291. In the present case, the court below reaffirmed its
Cefaratti analysis. Insofar as these decisions, resting on
opinions of this Court, [
Footnote 33] imply a reviewability for suppression orders
that would be general to cases from all Federal District Courts, we
have already indicated our disagreement earlier in this
opinion.
But the Government contends that appealability under the
District of Columbia statutes, though it requires a "final
decision," does not call for the independent or separable character
of the orders in the cases relied on by the Court of Appeals,
because here it is not essential to characterize an order as
plenary or disassociated from the criminal case, inasmuch as the
Government has a comprehensive right of appeal within a criminal
case in the District of Columbia. We do not agree that the standard
of "final decisions," as prerequisite to appeal, is something less
or different under 28 U.S.C. § 1291 as the successor to § 226 of
the District of Columbia Code of 1901 than it is under § 1291 as
the successor to the nationally applicable appeal provisions of the
Judicial Code.
Cf. Stack v. Boyle, 342 U. S.
1,
342 U. S. 6,
342 U. S. 12. By
this, we do not mean to say that § 935 of the 1901 Code is no
broader than 18 U.S.C. § 3731, but merely that the underlying
concepts of finality are the same in each case.
As the outline of the statutory development demonstrates, both
this Court and the Congress have been strict
Page 354 U. S. 414
in confining rights of appeal in criminal cases in the District
of Columbia to those plainly authorized by statute. We do not
believe that the combined provisions of the 1901 and 1926
enactments permit the Government to appeal in any situation where
the decision against it may have some characteristics of finality,
yet does not either terminate the prosecution or pertain to an
independent peripheral matter such as would be appealable in other
federal courts on the authority of
Stack v. Boyle, supra.
The 1901 Code gave the Government "the same right of appeal that is
given to the defendant," while the 1926 amendment to the Code
restricted the defendant's right of appeal to those decisions of
the Supreme Court (now District Court) that have a "final" effect,
as that term is understood in defining appellate jurisdiction. We
conclude that full force cannot be given to the limitations imposed
on criminal appeals in the District of Columbia unless the
Government is restricted as is the defendant. This is not to say
"that the United States cannot appeal from a final decision unless
it so happens that an opposite decision would also have been
final," as the Court of Appeals suggested in
Cefaratti.
Quite to the contrary, our holding is that the statutory provisions
applicable to the District of Columbia, subject to the further
limitations stated therein, afford the Government an appeal only
from an order against it which terminates a prosecution or makes a
decision whose distinct or plenary character meets the standards of
the precedents applicable to finality problems in all federal
courts. [
Footnote 34]
Page 354 U. S. 415
In thus defining the Government's appeal rights under § 935 of
the 1901 Code, we are mindful of the considerations that motivated
the Congress to specify in 1926 that interlocutory appeals in
criminal cases were not possible:
"Promptness in the dispatch of the criminal business of the
courts is by all recognized as in the highest degree desirable.
Greater expedition is demanded by a wholesome public opinion."
S.Rep. No. 926, 69th Cong., 1st Sess.
And cf. H.R.Rep.
No. 1363, 69th Cong., 1st Sess. Delays in the prosecution of
criminal cases are numerous and lengthy enough without sanctioning
appeals that are not plainly authorized by statute. We cannot do so
here without a much clearer mandate than exists in the present
terms and the historical development of the relevant provisions.
Cf. United States v. Burroughs, 289 U.
S. 159;
United States v. Sanges, 144 U.
S. 310.
The judgment of the Court of Appeals is reversed, and the case
is remanded to the District Court for proceedings consistent with
this opinion.
Reversed.
[
Footnote 1]
Petitioners were charged with carrying on a lottery known as the
"numbers game," a violation of D.C.Code, 1951, § 22-1501; with
knowing possession of lottery slips, a violation of § 22-1502; and
with conspiracy to carry on a lottery, a violation of 18 U.S.C. §
371. Since the substantive offense of carrying on a lottery was a
felony under § 22-1501, the conspiracy charge was also a felony, by
the terms of 18 U.S.C. § 371.
[
Footnote 2]
Fed.Rules Crim.Proc. 41:
"(e) MOTION FOR RETURN OF PROPERTY AND TO SUPPRESS EVIDENCE. A
person aggrieved by an unlawful search and seizure may move the
district court for the district in which the property was seized
for the return of the property and to suppress for use as evidence
anything so obtained on the ground that . . . (4) there was not
probable cause for believing the existence of the grounds of which
the warrant was issued. . . . If the motion is granted, the
property shall be restored unless otherwise subject to lawful
detention, and it shall not be admissible in evidence at any
hearing or trial. . . ."
[
Footnote 3]
Petitioners' individual motions were each captioned "Motion to
Suppress
Arrest Warrant'", and asked only for suppression of
the evidence taken from the person at the arrest. The District
Court also granted in part a motion, made on behalf of all the
defendants, relating to the seizure of evidence under search
warrants at two homes. The Government makes some point of
characterizing this as a motion for the return of property. It was
captioned "Motion to Suppress Evidence and Return Property," but
the body of the motion asked only that the evidence seized at those
places be suppressed. We find it unnecessary to decide whether this
was a motion "for return of property," or whether that would make a
difference in the question of appealability on these facts, for the
Court of Appeals, when it reached the merits of the issue of
probable cause, dealt only with the warrants for the arrest of
petitioners. Hence, we limit our consideration of the case to that
aspect of the District Court's order for suppression.
[
Footnote 4]
91 U.S.App.D.C. 297, 202 F.2d 13, as explained in
United
States v. Stephenson, 96 U.S.App.D.C. 44, 45, 223 F.2d 336,
337.
[
Footnote 5]
28 U.S.C. § 1291:
"The courts of appeals shall have jurisdiction of appeals from
all final decisions of the district courts . . . except where a
direct review may be had in the Supreme Court."
18 U.S.C. § 3731:
"An appeal may be taken by and on behalf of the United States
from the district courts direct to the Supreme Court of the United
States in all criminal cases in the following instances:"
"From a decision or judgment setting aside or dismissing any
indictment or information, or any count thereof, where such
decision or judgment is based upon the invalidity or construction
of the statute upon which the indictment or information is
founded."
"From a decision arresting a judgment of conviction for
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."
"An appeal may be taken by and on behalf of the United States
from the district courts to a court of appeals in all criminal
cases, in the following instances:"
"From a decision or judgment setting aside, or dismissing any
indictment or information, or any count thereof except where a
direst appeal to the Supreme Court of the United States is provided
by this section."
"From a decision arresting a judgment of conviction except where
a direct appeal to the Supreme Court of the United States is
provided by this section."
"The appeal in all such cases shall be taken within thirty days
after the decision or judgment has been rendered, and shall be
diligently prosecuted."
"Pending the prosecution and determination of the appeal in the
foregoing instances, the defendant shall be admitted to bail on his
own recognizance. . . ."
The references in the above statutes to "courts of appeals" and
"district courts" encompass the United States Court of Appeals for
the District of Columbia Circuit and the United States District
Court for the District of Columbia. 28 U.S.C. §§ 43, 132, 451; 62
Stat. 991, as amended, 63 Stat. 107.
See also 56 Stat.
271.
[
Footnote 6]
D.C.Code 1951, § 23-105:
"In all criminal prosecutions, the United States . . . shall
have the same right of appeal that is given to the defendant,
including the right to a bill of exceptions:
Provided,
That if on such appeal it shall be found that there was error in
the rulings of the court during a trial, a verdict in favor of the
defendant shall not be set aside."
D.C.Code 1951, § 17-102:
"Nothing contained in any Act of Congress shall be construed to
empower the United States Court of Appeals for the District of
Columbia to allow an appeal from any interlocutory order entered in
any criminal action or proceeding or to entertain any such appeal
heretofore or hereafter allowed or taken."
[
Footnote 7]
See also Cobbledick v. United States, 309 U.
S. 323;
Baltimore Contractors Inc. v. Bodinger,
348 U. S. 176,
348 U. S.
178-182.
[
Footnote 8]
As to the development in state law of statutes in derogation of
the common law principle against appeal by the prosecution,
see
United States v. Sanges, 144 U. S. 310,
144 U. S.
312-318; S.Rep. No. 5650, 59th Cong., 2d Sess.; H.R.Rep.
No. 45, 77th Cong., 1st Sess. 2-3.
See also Palko v.
Connecticut, 302 U. S. 319.
[
Footnote 9]
The Act of February 6, 1889, 25 Stat. 656, authorized direct
review in the Supreme Court by writ of error "in all cases of
conviction of crime the punishment of which provided by law is
death, tried before any court of the United States. . . ." Two
years later, the Circuit Courts of Appeals Act extended the
jurisdiction for direct review to all "cases of conviction of a
capital or otherwise infamous crime." 26 Stat. 827. The burden upon
this Court of hearing the large number of criminal cases led, in
1897, to transfer of the jurisdiction over convictions in
noncapital cases to the Circuit Courts of Appeals. 29 Stat. 492.
Section 238 of the Judicial Code completed the retrenchment in 1911
by eliminating direct review of capital cases. 36 Stat. 1157.
See Frankfurter and Landis, The Business of the Supreme
Court, 109-113 (1928).
Prior to the Acts of 1889 and 1891, there was no jurisdictional
provision for appeal or writ of error in criminal cases.
United States v.
More, 3 Cranch 159;
see United States v.
Sanges, 144 U. S. 310,
144 U. S. 319.
A question of law arising in a case tried by a Circuit Court of two
judges, if they disagreed on the question, could be brought here
upon a certificate of division of opinion at the request of either
party, and (except during one two-year period) without awaiting the
final outcome of the case in the Circuit Court. 2 Stat. 159; 17
Stat. 196; R.S. § 651.
See United States v. Sanges, supra,
at
144 U. S.
320-321. The availability of this procedure for review,
haphazard at best because dependent on disagreement between the two
sitting judges, came to be very much diluted by the increasing
frequency with which the Circuit Courts were conducted by a single
judge.
See Frankfurter and Landis, 79, 109.
[
Footnote 10]
The Act of 1891 included as a category of cases subject to
direct review by this Court "any case in which the
constitutionality of any law of the United States . . . is drawn in
question." 26 Stat. 828. But in
United States v. Sanges,
supra, the Court related the history of repeated rejections of
Government criminal appeals, noted that the Act expressly conferred
appellate jurisdiction in "cases of conviction," and held that the
Act did not sufficiently demonstrate congressional intent to have
criminal cases reviewed at the behest of the Government, either in
this Court or in the Circuit Courts of Appeals. The Court said:
"It is impossible to presume an intention on the part of
congress to make so serious and far-reaching an innovation in the
criminal jurisprudence of the United States."
144 U.S. at
144 U. S. 323.
Similarly, after review of noncapital convictions was again
committed to the Circuit Courts of Appeals in 1897, it was held
that, upon a reversal of a conviction by that court, the Government
could not bring the case here through the certiorari jurisdiction
that had also been created by the Act of 1891.
United States v.
Dickinson, 213 U. S. 92.
Section 240 of the Judicial Code later conferred this jurisdiction
explicitly. 36 Stat. 1157.
[
Footnote 11]
The 1907 enactment, 34 Stat. 1246, authorized direct review in
this Court by writ of error in the same three classes of cases,
roughly speaking, as are listed in the first four paragraphs of the
present 18 U.S.C. § 3731, quoted in
note 5 supra. The original Act also included the
provisions protective of the defendant in the last two paragraphs
quoted there, relating to expedition of the Government appeal and
bail on his own recognizance, and the original Act had additional
cautionary provisions, commanding precedence for those cases and
barring the writ of error "in any case where there has been a
verdict in favor of the defendant."
The legislative history emphasizes the awareness of the Congress
that Government appeals in criminal cases were a sharp innovation,
and congressional concern that such jurisdiction should go no
farther at that time than the immediate problem of affording review
for trial court opinions as to the construction or validity of
federal statutes. In brief, the development of the Criminal Appeals
Act was this: the House bill proposed adoption of the language of
the District of Columbia Code of 1901, which had given the
Government "the same right of appeal that is given to the
defendant. . . ." (Quoted,
note
6 supra, and discussed later in this opinion.) The
Senate Committee on the Judiciary substituted a more specifically
drawn measure, dividing the jurisdiction between this Court and the
Circuit Court of Appeals along the line the 1891 Act had drawn for
civil cases. After lengthy floor debate, in which various
objections to the measure were put forth, it was amended on the
floor by narrowing the classes of cases in which the Government
could seek review, by limiting the jurisdiction to direct review
here, and by adding the protective provisions noted above. The
House accepted the Senate product.
See H.R.Rep. No. 2119,
59th Cong., 1st Sess.; S.Rep. No. 3922, 59th Cong., 1st Sess.;
S.Rep. No. 5650, 59th Cong., 2d Sess.; H.R.Conf.Rep. No. 8113, 59th
Cong., 2d Sess.; 40 Cong.Rec. 8695, 9032-9033; 41 Cong.Rec.
2190-2197, 2745-2763, 2818-2825, 3044-3047.
See also
Frankfurter and Landis 114-119.
[
Footnote 12]
56 Stat. 271.
See H.R.Rep. No. 45, 77th Cong., 1st
Sess. In these new categories of cases, the appeal was directed to
the Court of Appeals. The present version of the added language is
quoted, as the fifth through seventh paragraphs of 18 U.S.C. § 3731
in
note 5 supra.
[
Footnote 13]
Cohen v. Beneficial Loan Corp., 337 U.
S. 541,
337 U. S.
545-547;
Swift & Co. v. Compania Caribe,
339 U. S. 684,
339 U. S.
688-689, and cases cited.
[
Footnote 14]
E.g., Perlman v. United States, 247 U. S.
7;
GoBart Importing Co. v. United States,
282 U. S. 344.
[
Footnote 15]
Cf. Dier v. Banton, 262 U. S. 147.
Rule 41(e) explicitly authorizes making the motion in a different
district:
"A person aggrieved by an unlawful search and seizure may move
the district court for the district in which the property was
seized for the return of the property and to suppress for use as
evidence anything so obtained. . . . The motion to suppress
evidence may also be made in the district where the trial is to be
had. . . ."
[
Footnote 16]
E.g., Dickhart v. United States, 57 App.D.C. 5, 16 F.2d
345. That was a motion, after acquittal in a case under the
National Prohibition Act, 41 Stat. 305, to regain possession of
liquor that had been seized.
See also note 17 infra.
[
Footnote 17]
E.g., Steele v. United States, No. 1, 267 U.
S. 498;
United States v. Kirschenblatt, 16 F.2d
202;
cf. also Steele v. United States, No. 2, 267 U.
S. 505;
Dowling v. Collins, 10 F.2d 62. We do
not suggest that a motion made under Rule 41(e) gains or loses
appealability simply upon whether it asks return or suppression or
both. The cases just cited arose under the National Prohibition
Act, which provided an independent proceeding to secure the return
of property seized under a search warrant that had been issued
wrongfully. 41 Stat. 315, adopting 40 Stat. 228. That factor
underlay the discussion of this category of orders as appealable in
Cogen v. United States, 278 U. S. 221,
278 U. S.
225-227. The "essential character and the circumstances
under which it is made" determine whether a motion is an
independent proceeding, or merely a step in the criminal case.
Id. at
278 U. S. 225;
cf. United States v. Wallace & Tiernan Co.,
336 U. S. 793,
336 U. S.
801-803.
We think that a contemporary illustration of this category is
United States v. Ponder, 238 F.2d 825, where the
suppression order related to a plenary proceeding that had been
brought in order to impound election records for investigation by
the Department of Justice and the grand jury.
[
Footnote 18]
See especially United States v. Sanges, 144 U.
S. 310;
Cross v. United States, 145 U.
S. 571;
cf. Kepner v. United States,
195 U. S. 100,
195 U. S.
124-134.
[
Footnote 19]
United States v. Rosenwasser, 145 F.2d 1015;
cf.
United States v. Janitz, 161 F.2d 19 (order made at trial);
United States v. Williams, 227 F.2d 149 (motion made
before indictment);
see United States v. One 1946 Plymouth
Sedan, 167 F.2d 3, 8-9. The court below has held a pretrial
order suppressing wiretap evidence to be interlocutory,
distinguishing its ruling in the
Cefaratti case on the
basis that the prohibition of Rule 41(e) against reviving the issue
of admissibility at the trial does not apply to wiretap evidence.
United States v. Stephenson, 96 U.S.App.D.C. 44, 223 F.2d
336. We express no opinion as to this distinction in view of our
disposition of the present case.
An appeal by the United States was treated on the merits,
without discussion of appealability, where the move for return of
papers was made after indictment, in
United States v.
Kirschenblatt, 16 F.2d 202. That proceeding had elements of
independent character because of its statutory context under the
National Prohibition Act. Likewise,
United States v.
Ponder, 238 F.2d 825, which has some broad language favoring
appealability for the Government, on its facts was seen by the
court as a proceeding independent of the pending criminal case.
See note 17
supra.
[
Footnote 20]
For an earlier technique,
see note 9 supra.
[
Footnote 21]
See United States v. Ball, 163 U.
S. 662,
163 U. S. 671;
Kepner v. United States, 195 U. S. 100,
195 U. S.
124-134.
Under the District of Columbia Code of 1901, to be discussed
later in this opinion, the Government was granted
"the same right of appeal that is given to the defendant, . . .
Provided, That if on such appeal 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."
31 Stat. 1341. It was soon held that the effect of the proviso
was to preclude entirely the taking of an appeal by the Government
after a verdict for the defendant.
United States v. Evans,
30 App.D.C. 58,
approved, 213 U. S. 213 U.S.
297;
see United States v. Martin, 81
A.2d 651, 652-653 (Mun.Ct.App.).
[
Footnote 22]
In the Narcotic Control Act of 1956, the Congress enacted the
following provision in a new chapter being added to Title 18 of the
U.S.Code (Supp. IV, 1957):
"§ 1404. Motion to Suppress -- Appeal by the United States."
"In addition to any other right to appeal, the United States
shall have the right to appeal from an order granting a motion for
the return of seized property and to suppress evidence made before
the trial of a person charged with a violation of --"
"
[designated narcotics offenses]"
"This section shall not apply with respect to any such motion
unless the United States attorney shall certify to the judge
granting such motion that the appeal is not taken for purposes of
delay. Any appeal under this section shall be taken within 30 days
after the date the order was entered, and shall be diligently
prosecuted."
70 Stat. 573.
The legislative history shows that the Department of Justice
expressed a preference for the passage of other bills, which had
been introduced to amend 18 U.S.C. § 3731, so as to authorize
Government appeals from suppression orders in all federal
prosecutions, and without the qualification requiring certification
by the United States Attorney.
See S.Rep. No. 1997, 84th
Cong., 2d Sess. 19. The need for the enactment of the more limited
measure was stated by the respective committees, which were aware
of some of the prior court decisions, including those of the
District of Columbia Circuit in
Cefaratti and the instant
case.
See id. at 11, 15, 26; S.Rep. No. 2033, 84th Cong.,
2d Sess. 16-19, 28; H.R.Rep. No. 2388, 84th Cong., 2d Sess. 5;
Hearing before the Subcommittee on Improvements in the Federal
Criminal Code of the Senate Committee on the Judiciary on S. 3760,
84th Cong., 2d Sess. 7-11, 38-43.
The more general bills referred to by the Department of Justice
were S. 3423 and H.R. 9364, of the 84th Congress. In the current
session of the 85th Congress, a bill to the same effect, H.R. 263,
has been introduced.
[
Footnote 23]
Thus, the Criminal Appeals Act has provided for bail on the
defendant's own recognizance, and the bills listed in
note 22 supra, would extend
that provision to defendants pending Government appeals from
suppression orders, while the appeal section enacted in the
Narcotic Control Act of 1956 does not refer to bail. Both Acts and
the bills have the same acceleration provision, albeit the 30-day
period was much more of a speed-up when the Criminal Appeals Act
was drawn in 1907 than it is today.
Cf. Fed.Rules
Crim.Proc. 37(a)(2); 28 U.S.C. § 2107. Only the Narcotic Control
Act requires an express certification that the Government appeal is
not taken for purposes of delay.
[
Footnote 24]
See Ex parte
Bradley, 7 Wall. 364,
74 U. S.
366-368; Frankfurter and Landis 120-124.
[
Footnote 25]
5 Stat. 307, Dist.Col.R.S. § 845.
[
Footnote 26]
31 Stat. 1202. There was also a Police Court, given concurrent
jurisdiction over misdemeanors, which now is known as the criminal
branch of the Municipal Court. 31 Stat. 1196, D.C.Code 1951, §
11-755. In order to simplify the discussion, we shall not refer in
this opinion to the appellate jurisdiction that has existed, in
changing forms, from the decisions of this inferior court.
See D.C.Code 1951, §§ 11-772, 11-773;
United States v.
Martin, 81
A.2d 651 (Mun.Ct.App.);
United States v. Basiliko, 35
A.2d 185 (Mun.Ct.App.).
[
Footnote 27]
31 Stat. 1225. The relevant text of § 226 was:
"Any party aggrieved by any final order, judgment, or decree of
the supreme court of the District of Columbia . . . may appeal
therefrom to the said court of appeals; . . . Appeals shall also be
allowed to said court of appeals from all interlocutory orders of
the Supreme Court of the District of Columbia . . . whereby the
possession of property is changed or affected, such as orders for
the appointment of receivers, granting injunctions, dissolving
writs of attachment, and the like, and also from any other
interlocutory order, in the discretion of the said court of
appeals, whenever it is made to appear to said court upon petition
that it will be in the interest of justice to allow such
appeal."
[
Footnote 28]
A list of state provisions was submitted to the Congress in 1907
in connection with the Criminal Appeals Act.
See S.Rep.
No. 5650, 59th Cong., 2d Sess.
Also see United States v.
Sanges, 144 U. S. 310,
144 U. S.
312-318.
[
Footnote 29]
56 Stat. 271.
[
Footnote 30]
62 Stat. 862, 992; 63 Stat. 110.
[
Footnote 31]
See S.Rep. No. 926, 69th Cong., 1st Sess.; H.R.Rep. No.
1363, 69th Cong., 1st Sess.; 67 Cong.Rec. 9968.
[
Footnote 32]
63 Stat. 110.
[
Footnote 33]
Cohen v. Beneficial Loan Corp., 337 U.
S. 541;
Swift & Co. v. Compania Caribe,
339 U. S. 684;
Stack v. Boyle, 342 U. S. 1.
[
Footnote 34]
Cases cited
note 33
supra; see also ante, pp.
354 U. S.
399-408.
Since the Court of Appeals relied on precedents of general
applicability to finality problems in construing the District of
Columbia statutory provisions, we do not consider that this case
falls within the policy that ordinarily causes us to adhere to that
court's view on local law matters.
Cf. Del Vecchio v.
Bowers, 296 U. S. 280,
296 U. S. 285;
see Griffin v. United States, 336 U.
S. 704,
336 U. S.
712-718.