1. An indictment was dismissed by the District Court before
trial based upon the construction of the statute upon which the
indictment was founded. The Government filed notice of appeal
within 30 days of the denial of the petition for rehearing, but
more than 30 days after the entry of the original judgment. Under
Rule 11(2) of this Court, a criminal appeal from a district court
to this Court must be filed within 30 days after entry of "the
judgment or order" appealed from, and appellees contended that the
filing of a petition for rehearing without authorization by statute
or rule cannot extend the time for appeal.
Held: the timely filing of a petition for a rehearing
in a criminal case, no less than in a civil case, renders the
judgment nonfinal for purposes of appeal until the court disposes
of the petition, and, in such an instance, the 30-day period
prescribed by Rule 11(2) begins to run from the date of the denial
of the petition for rehearing. Pp.
376 U. S.
77-80.
2. Appellees were indicted under tuo counts for forcing at
gunpoint the pilot of a private airplane to transport them from
Florida to Cuba. One count, under 18 U.S.C. § 1201, for kidnaping,
was dismissed by the District Court on the ground that the
kidnaping was not "for ransom or reward or otherwise" unless
committed for the pecuniary benefit of the defendant.
Held: the statute, as
Gooch v. United States,
297 U. S. 124,
plainly held, is not confined to kidnapings for pecuniary gain, nor
need the underlying purpose for which the kidnaping is done be an
illegal one in order for the statute to apply. Pp.
376 U. S.
81-82.
3. The other count, under § 902(i) of the Federal Aviation Act
of 1958, as amended in 1961, for "aircraft piracy," was dismissed
by the District Court on the ground that a private airplane is not
"an aircraft in flight in air commerce" within the meaning of the
statute.
Held: both the language of the statute and its
legislative history manifest congressional intent to include
private aircraft within the scope of § 902(i). Pp.
376 U. S.
83-85.
Reversed and remanded.
Page 376 U. S. 76
MR. JUSTICE HARLAN delivered the opinion of the Court.
A federal grand jury alleged in an indictment, returned in the
United States District Court for the Southern District of Florida,
that on April 13, 1962, the appellees that kidnaped at gunpoint the
pilot of a private Cessna 172 airplane and compelled him to
transport them from Florida to Cuba. Count 1 of the indictment
charged appellees with having violated 18 U.S.C. § 1201, [
Footnote 1] the Federal Kidnaping Act.
Under Court 2, appellees were charged with the commission of
"aircraft piracy" in contravention of a 1961 amendment to § 902 of
the Federal Aviation Act of 1958, 75 Stat. 466, 49 U.S.C. (Supp.
IV) § 1472(i). [
Footnote 2]
The District Court dismissed the indictment on September 17,
1962, before trial. It held that a kidnaping is not "for ransom or
reward or otherwise," as required by § 1201(a), unless committed
for the pecuniary benefit of
Page 376 U. S. 77
the defendant, and that a private airplane is not "an aircraft
in flight in air commerce" within the meaning of the aircraft
piracy provision, which it read as limited to commercial airliners.
The Government's petition for rehearing, filed October 17, was
denied on November 8. On December 5, the Government filed a notice
of appeal to this Court under 18 U.S.C. § 3731, permitting direct
appeal when the dismissal of an indictment is based on construction
of the statute upon which the indictment is founded. We noted
probable jurisdiction, 372 U.S. 963. We conclude that the judgment
of dismissal must be reversed.
I
Appellees contend that this Court is without jurisdiction, and
is thereby precluded from considering the case on its merits. They
argue that, absent authorization by statute or rule, the filing of
a petition for rehearing by the Government in a criminal case
cannot extent the time for appeal. Rule 11(2) of this Court
provides:
"An appeal permitted by law from a district court to this court
in a criminal case shall be in time when the notice of appeal
prescribed by Rule 10 is filed with the clerk of the district court
within thirty days after entry of the judgment or order appealed
from."
It is undisputed that the notice of appeal was filed by the
United States within 30 days from the denial of the petition for
rehearing, although not within 30 days of the original entry of
judgment. Since the petition for rehearing was filed within 30 days
of the judgment, we are not faced with an attempt to rejuvenate an
extinguished right to appeal.
Cf. Allegrucci v. United
States, 372 U.S. 954. The question, therefore, is simply
whether in a criminal case a timely petition for rehearing by the
Government filed within the permissible time for appeal
Page 376 U. S. 78
renders the judgment not final for purposes of appeal until the
court disposes of the petition -- in other words, whether, in such
circumstances, the 30-day period prescribed by Rule 11(2) begins to
run from the date of entry of judgment or the denial of the
petition for rehearing.
The latter is the well established rule in civil cases, whether
brought here by appeal or certiorari,
e.g., United States v.
Ellicott, 223 U. S. 524,
223 U. S. 539;
Morse v. United States, 270 U. S. 151,
270 U. S.
153-154;
Bowman v. Loperena, 311 U.
S. 262,
311 U. S.
264-266. That a rehearing petition, at least when filed
within the original period for review, may also extend the time for
filing a petition for certiorari by a criminal defendant is the
unarticulated premise on which the Court has consistently
proceeded.
See, e.g., Panico v. United States,
375 U. S. 29 (order
extending time for filing entered 19 days after denial of petition
for rehearing en banc, 45 days after original judgment of Court of
Appeals);
Corey v. United States, 375 U.
S. 169 (petition for certiorari filed 30 days after
denial of rehearing, 45 days after original judgment of Court of
Appeals);
Genovese v. United States, decided with
Evola v. United States, 375 U. S. 32 (order
extending time for filing entered 16 days after denial of rehearing
and rehearing en banc, 49 days after entry of original judgment).
In
Craig v. United States, 298 U.S. 637, this Court
dismissed an application for a writ of certiorari as premature,
"without prejudice to a renewal of the application within thirty
days after action by the Circuit Court of Appeals on the petition
for rehearing."
This summary disposition plainly reflects an advertent decision
that criminal judgments are nonfinal for purposes of appeal so long
as timely rehearing petitions are pending.
We have recently recognized the appropriateness of petitions for
rehearing by the United States in criminal cases,
Forman v.
United States, 361 U. S. 416,
361 U. S.
425-426.
Page 376 U. S. 79
The practice of the Court has been to treat such petitions as
having the same effect on the permissible time for seeking review
as do similar petitions in civil cases and in criminal cases in
which the Government has won below.
United States v.
Williams, 341 U. S. 58
(appeal from dismissal of indictment by District Court; notice of
appeal filed 29 days after denial of motion for rehearing, 44 days
after entry of original order);
United States v. Smith,
342 U. S. 225
(appeal from dismissal of indictment by District Court; notice of
appeal filed 28 days after denial of petition for rehearing, 109
days after entry of original order);
United States v.
Calderon, 348 U. S. 160
(petition for certiorari from Court of Appeals; order extending
time for filing entered 28 days after denial of rehearing, 88 days
after entry of original judgment).
Appellees place great reliance on the absence of any statute or
rule governing the effect of rehearing petitions of the Government,
but both the civil and criminal procedural doctrines lack such a
foundation. The wording of Rule 11(2) of this Court, as
unilluminating on this issue as it may be standing alone, is
virtually identical to that of Rule 22(2), which encompasses
petitions for certiorari both by criminal defendants and the
Government. The inference is compelling that no difference in
treatment is intended between appealable judgments and those
reviewable by certiorari, or between criminal defendants and the
United States. We are constrained to read these rules as consistent
with a traditional and virtually unquestioned practice.
Rule 37(a)(2) of the Federal Rules of Criminal Procedure
[
Footnote 3] does not alter
this conclusion, since it sheds no
Page 376 U. S. 80
light on the relevance of a petition for rehearing. Nor can the
principle of strict construction of statutes permitting
governmental appeals in criminal cases,
Carroll v. United
States, 354 U. S. 394, be
utilized to undermine a well established procedural rule for
criminal, as well as civil, litigation. No persuasive
considerations of policy dictate of deviant standard for government
appeals.
Of course, speedy disposition of criminal cases is desirable,
but to deprive the Government of the opportunity to petition a
lower court for the correction of errors might, in some
circumstances, actually prolong the process of litigation -- since
plenary consideration of a question of law here ordinarily consumes
more time than disposition of a petition for rehearing -- and
could, in some cases, impose an added and unnecessary burden of
adjudication upon this Court. [
Footnote 4] It would be senseless for this Court to pass
on an issue while a motion for rehearing is pending below, and no
significant saving of time would be achieved by altering the
ordinary rule to the extent of compelling a notice of appeal to be
filed while the petition for rehearing is under consideration.
We conclude that this appeal was timely filed, and that the
Court has jurisdiction to determine the case on its merits.
Page 376 U. S. 81
II
By interpreting 18 U.S.C. § 1201 to require a motive of
pecuniary profit, the District Court disregarded the plain holding
of
Gooch v. United States, 297 U.
S. 124, in which the defendant, who had seized and
carried away a state peace officer attempting to effectuate his
arrest, was held subject to prosecution under the statute. Prior to
a 1934 amendment, the Federal Kidnaping Act had been applicable
only if the person transported was held for ransom or reward. The
wording was then changed to encompass persons held "for ransom or
reward
or otherwise, except, in the case of a minor, by a
parent thereof," 48 Stat. 781. (Emphasis added.) The Court in
Gooch, noting the ambiguity of the word "reward," found
convincing evidence in the amendment's legislative history that the
addition of "otherwise" was intended to make clear that a
nonpecuniary motive did not preclude prosecution under the statute.
The Senate Judiciary Committee, which quoted from a memorandum of
the Justice Department and the House Judiciary Committee both had
reported that the bill was designed to extend federal jurisdiction
under the Act to cases of persons kidnaped and held "not only for
reward, but for any other reason." [
Footnote 5] The Court's conclusion that the amended
statute covered the facts before it was clearly in accord with the
congressional purpose.
The Courts of Appeals have consistently followed
Gooch,
e.g., United States v. Parker, 103 F.2d 857;
Brooks v.
United States, 199 F.2d 336;
Hayes v. United States,
296 F.2d 657, and appellees do not challenge the authority of that
case. While recognizing that the
Page 376 U. S. 82
statute is not limited to kidnapings for pecuniary gain, they
assert that it is restricted to kidnapings for an otherwise
illegal purpose. This contention is without support in the
language of the provision, its legislative history, judicial
decisions, or reason. The wording certainly suggests no distinction
based on the ultimate purpose of a kidnaping; were one intended,
the exclusion of parent-child kidnapings would have been largely
superfluous, since such conduct is rarely the result of an
intrinsically illegal purpose. Nothing in the reports or debates
supports appellees' position. In two cases,
Wheatley v. United
States, 159 F.2d 599, 600;
Bearden v. United States,
304 F.2d 532 (judgment vacated on another ground,
372 U.
S. 252), Courts of Appeals have assumed that the
applicability of the statute does not turn on the illegality of the
ultimate purpose of the kidnaper. No policy considerations support
appellees' strained reading of 18 U.S.C. § 1201. A murder committed
to accelerate the accrual of one's rightful inheritance is hardly
less heinous than one committed to facilitate a theft; by the same
token, we find no compelling correlation between the propriety of
the ultimate purpose sought to be furthered by a kidnaping and the
undesirability of the act of kidnaping itself. Appellees rely on
the principle of strict construction of penal statutes, [
Footnote 6] but that maxim is hardly a
directive to this Court to invent distinctions neither reflective
of the policy behind congressional enactments nor intimated by the
words used to implement the legislative goal. [
Footnote 7]
Page 376 U. S. 83
We hold that the District Court improperly dismissed the first
court of the indictment.
III
The 1961 "aircraft piracy" amendment to the Federal Aviation Act
makes it a federal crime,
inter alia, to exercise control,
by threat of force with wrongful intent, of "an aircraft in flight
in air commerce," § 902(i), 75 Stat. 466, 49 U.S.C. (Supp. IV) §
1472(i). Examination of the provision itself and its relation to
the rest of the statute, apart from reference to the legislative
history, stands against the conclusion of the court below. The
Cessna 172 was "an aircraft"; it was "in flight"; it was in flight
"in air commerce." Appellees assert that, had Congress intended to
include private airplanes, it could have referred to "any
aircraft," but, standing alone, the phrase "an aircraft" is, on its
face, an all-inclusive term. Appellees' contention that the
statutory language refers only to commercial airlines is
contradicted by the definition of air commerce in the original act,
§ 101 of the Federal
Page 376 U. S. 84
Aviation Act of 1958, 72 Stat. 737, 49 U.S.C. (Supp. IV) §
1301:
"(4) 'Air commerce' means interstate, overseas, or foreign air
commerce or the transportation of mail by aircraft or any operation
or navigation of aircraft within the limits of any Federal airway
or any operation or navigation of aircraft which directly affects,
or which may endanger safety in, interstate, overseas, or foreign
air commerce."
Without question, this definition covers the facts alleged in
the indictment in this case. That the relation between the language
of the "aircraft piracy" amendment and the above definition was not
overlooked by the drafters is indicated by the different
phraseology used in a contemporaneous amendment concerning
concealed weapons. Section 902(l) of the amended act, 75 Stat. 466,
49 U.S.C. (Supp. IV) § 1472(l), makes it a crime to carry such a
weapon "while aboard an aircraft being operated by an air carrier
in air transportation." Thus, Congress knew how to choose words to
refer solely to commercial airliners when it wished to do so.
The conclusions drawn from the statute itself are confirmed by
the legislative history. The House Committee on Interstate and
Foreign Commerce reported, H.R.Rep. No. 958, 87th Cong., 1st Sess.,
that the term "air commerce" was used by design because of its
broad scope as defined in existing law, p. 8. It specifically cited
"the urgent need for stronger Federal laws applicable to criminal
acts committed aboard commercial and private aircraft," p. 3, and
noted that the subsection regarding weapons
"would be limited to aircraft being used in air carrier
commercial operations, whereas these other subsections (including
that relating to aircraft piracy) would apply also in the case of
private aircraft,"
p. 15.
Page 376 U. S. 85
Comments during House debate accord with the Committee's
understanding,
see remarks of Congressman Harris (107
Cong.Rec. 16545) and Congressman Williams (107 Cong.Rec.
16547-16548). The remarks of Senator Engle, the sponsor of the
aircraft piracy provisions in the Senate, during debate are
explicit: "Yes; it applies to all airplanes in air commerce, which
includes, of course, not only commercial aircraft, but private
airplanes as well." (107 Cong.Rec. 15243). The statements of
members of Congress evincing a concern for the protection of
passengers aboard commercial airlines,
see, e.g., remarks
of Congressman Rostenkowski (107 Cong.Rec. 16552), do not reflect
any intent to put private aircraft beyond the scope of the
provision. Indeed, since one of the often-expressed purposes of the
aircraft piracy amendment was to provide a solution to the
jurisdictional problems involved in fixing a locus for a crime
committed in transit and in arresting a deplaning passenger who may
have engaged in criminal activity over the territory of a different
State,
see, e.g., H.R.Rep. No. 958, 87th Cong., 1st Sess.,
pp. 3-5, one would suppose, absent any other evidence, a design to
include private aircraft; these problems are as pertinent to acts
committed aboard them as to those done on commercial airliners.
Finding that the plainly expressed intent of Congress, as
manifested both in the statutory language and legislative history,
was to include private aircraft within the scope of § 902(i), we
conclude that dismissal of the second count of the indictment was
also incorrect.
The judgment below is reversed, and the case is remanded to the
District Court with instructions to reinstate both counts of the
indictment.
It is so ordered.
[
Footnote 1]
"(a) Whoever knowingly transports in interstate or foreign
commerce any person who has been unlawfully seized, confined,
inveigled, decoyed, kidnaped, abducted, or carried away and held
for ransom or reward or otherwise, except, in the case of a minor,
by a parent thereof, shall be punished. . . ."
[
Footnote 2]
"(1) Whoever commits or attempts to commit aircraft piracy, as
herein defined, shall be punished --"
"(2) As used in this subsection, the term 'aircraft piracy'
means any seizure or exercise of control, by force or violence or
threat of force or violence and with wrongful intent, of an
aircraft in flight in air commerce."
[
Footnote 3]
"
Time for Taking Appeal. An appeal by a defendant may
be taken within 10 days after entry of the judgment or order
appealed from, but if a motion for a new trial or in arrest of
judgment has been made within the 10-day period, an appeal from a
judgment of conviction may be taken within 10 days after entry of
the order denying the motion. When a court after trial imposes
sentence upon a defendant not represented by counsel, the defendant
shall be advised of his right to appeal, and, if he so requests,
the clerk shall prepare and file forthwith a notice of appeal on
behalf of the defendant. An appeal by the government when
authorized by statute may be taken within 30 days after entry of
the judgment or order appealed from."
[
Footnote 4]
In this case, the record and legal issues plainly indicate the
good faith of the Government in petitioning for rehearing. We
would, of course, not countenance the United States' using such
petitions simply as a delaying tactic in criminal litigation; there
is, however, not the slightest basis for believing that it would
try to do so.
[
Footnote 5]
S.Rep. No. 534, 73d Cong., 2d Sess., Mar. 20, 1934; H.R.Rep. No.
1457, 73d Cong., 2d Sess., May 3, 1934, p. 2.
[
Footnote 6]
Chatwin v. United States, 326 U.
S. 455, which involved the transporting of a girl to
maintain a "celestial" marriage, is inapposite. There, the element
of coercion or deception, central to the crime of kidnaping, was
absent.
[
Footnote 7]
Our disposition of this issue relieves us from considering
whether appellees' ultimate purpose was unlawful, and, if so,
whether illegality of purpose, if not obvious, is a necessary
element in the indictment. However, it may be observed that a trip
to Cuba would have been lawful only if appellees had had passports
specifically endorsed for travel to Cuba.
See Presidential
Proclamations No. 2914, Dec. 16, 1950 (64 Stat. A454); and No.
3004, Jan. 17, 1953 (67 Stat. C31); § 215 of the Immigration and
Nationality Act of 1952, 66 Stat. 163, 190, 8 U.S.C. § 1185;
Department of State Public Notice 179, 26 Fed.Reg. 492, Jan. 16,
1961. Appellees, without claiming lawfulness of purpose, argue that
the burden of showing that they had not complied with the
regulations governing travel to Cuba rests with the United States,
and that noncompliance has to be specifically alleged in an
indictment.
The discussion concerning the legality of travel to Cuba points
up how untenable is appellees' basic position. It would surely be
anomalous were application of the Kidnaping Act made to turn on
whether existing regulations permit travel to the point to
destination without a passport, with an ordinary passport, or only
with a passport specially endorsed.