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
Page 399 U. S. 268
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.
Page 399 U. S. 269
(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
Page 399 U. S. 270
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]
Page 399 U. S. 271
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. "
Page 399 U. S. 272
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
Page 399 U. S. 273
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
Page 399 U. S. 274
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
Page 399 U. S. 275
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,
Page 399 U. S. 276
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
Page 399 U. S. 277
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
Page 399 U. S. 278
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
Page 399 U. S. 279
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
Page 399 U. S. 280
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
Page 399 U. S. 281
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
United States v.
Klintock, 5 Wheat. 144,
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 Carter v.
Bennett, 15 How. 354,
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
Page 399 U. S. 282
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]
Page 399 U. S. 283
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
Page 399 U. S. 284
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.
Page 399 U. S. 285
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
Page 399 U. S. 286
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,
Page 399 U. S. 287
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
Page 399 U. S. 288
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.
Page 399 U. S. 289
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
Page 399 U. S. 290
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]
Page 399 U. S. 291
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,
Page 399 U. S. 292
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]
Page 399 U. S. 293
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
Page 399 U. S. 294
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,
Page 399 U. S. 295
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,
Page 399 U. S. 296
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
Page 399 U. S. 297
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
Page 399 U. S. 298
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
Page 399 U. S. 299
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.
Page 399 U. S. 300
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]
Page 399 U. S. 301
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
Page 399 U. S. 302
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
Page 399 U. S. 303
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.
Page 399 U. S. 304
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
Page 399 U. S. 305
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
Page 399 U. S. 306
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.
Page 399 U. S. 307
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
Page 399 U. S. 308
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.
[
Footnote 1]
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.
[
Footnote 2]
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.)
[
Footnote 3]
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.
[
Footnote 4]
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.)
[
Footnote 5]
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.
[
Footnote 6]
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.
[
Footnote 7]
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).
[
Footnote 8]
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. . .
."
[
Footnote 9]
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).
[
Footnote 10]
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 at 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).
[
Footnote 11]
This Court first recognized the existence of motions in arrest
of judgment in
United States v.
Cantril, 4 Cranch 167 (1807).
[
Footnote 12]
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."
[
Footnote 13]
United States v. Zisblatt, supra, at 742.
[
Footnote 14]
United States v. Lias, supra, at 687.
[
Footnote 15]
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).
[
Footnote 16]
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.
[
Footnote 17]
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."
[
Footnote 18]
This principle would dictate that, after this jurisdictional
dismissal, Sisson may not be retried.
[
Footnote 19]
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.
[
Footnote 20]
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.
[
Footnote 21]
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."
[
Footnote 22]
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.
[
Footnote 23]
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).
[
Footnote 24]
1892 Rep. Atty.Gen. xxiv.
[
Footnote 25]
United States v. Armour Co., 142 F. 808 (D.C. N.D.
Ill.1906).
[
Footnote 26]
.
See Frankfurter & Landis,
supra,
n 23, at 117; Kurland,
supra, n 23, at
449.
[
Footnote 27]
. 41 Cong.Rec. 22.
[
Footnote 28]
Kurland,
supra, n 23, at 450.
[
Footnote 29]
40 Cong.Rec. 5408.
[
Footnote 30]
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.
[
Footnote 31]
See S.Rep. No. 3922, 59th Cong., 1st Sess. (1906).
[
Footnote 32]
See 40 Cong.Rec. 9033.
[
Footnote 33]
Id. at 9122.
[
Footnote 34]
41 Cong.Rec. 1865; S.Rep. No. 5650, 59th Cong., 2d Sess.
(1907).
[
Footnote 35]
41 Cong.Rec. 2190-2197; 2744-2763; 2818-2825.
[
Footnote 36]
Id. at 2194.
[
Footnote 37]
Id. at 2195-2197.
[
Footnote 38]
See id. at 2749-2762.
[
Footnote 39]
See id. at 2819.
[
Footnote 40]
See id. at 2752.
[
Footnote 41]
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.
[
Footnote 42]
See infra at
399 U. S.
302-307.
[
Footnote 43]
See 41 Cong.Rec. at 2822, 2823.
[
Footnote 44]
Id. at 2834.
[
Footnote 45]
Id. at 3044-3047.
[
Footnote 46]
Id. at 3647.
[
Footnote 47]
See H.R.Rep. No. 8113, 59th Cong., 2d Sess.
[
Footnote 48]
41 Cong.Rec. 3994, 4128.
[
Footnote 49]
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.
[
Footnote 50]
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.
[
Footnote 51]
See, e.g., 1907 Rep.Atty.Gen. 4.
See infra at
399 U. S.
306.
[
Footnote 52]
See 396 U.S. 812 (1969).
[
Footnote 53]
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.
[
Footnote 54]
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.
[
Footnote 55]
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).
[
Footnote 56]
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.
[
Footnote 57]
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.
[
Footnote 58]
See, e.g., 41 Cong.Rec. 2745-2763.
[
Footnote 59]
See, e.g., 40 Cong.Rec. 9033; 41 Cong.Rec. 2192;
id. at 2751.
[
Footnote 60]
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.
[
Footnote 61]
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).
[
Footnote 62]
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).
[
Footnote 63]
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.
[
Footnote 64]
See supra, nn
53-54
[
Footnote 65]
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.
[
Footnote 66]
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
Page 399 U. S. 309
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
Page 399 U. S. 310
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
United States v.
Cantril, 4 Cranch 167 (1807). And, in 1820, Chief
Justice Marshall stated for the Court that "judgment can be
arrested only for errors apparent on the record. . . ."
United States v.
Klintock, 5 Wheat. 144,
18 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
Page 399 U. S. 311
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
Page 399 U. S. 312
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]
Page 399 U. S. 313
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
Page 399 U. S. 314
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
Page 399 U. S. 315
proposals until a federal district court rendered its decision
in
United States v. Armour & Co., 142 F. 808 (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
Page 399 U. S. 316
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).
Page 399 U. S. 317
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
Page 399 U. S. 318
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
Page 399 U. S. 319
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 different view of the Constitution than does another is
an extraordinary reason for differing results in cases that
rationally ought to be decided the same way -- and with appellate
review available to insure that end. The conclusion that this is
not a "motion in arrest," insulates the judge's constitutional
decision from review anywhere -- here or in the Court of Appeals.
That, I submit, is precisely the situation Congress thought it was
correcting with the Criminal Appeals Act. It is remarkable that the
Court finds it so easy to ignore the explicit and meaningful
legislative history which refutes its strained reading of the
statute and history.
The common law rule that an arrest of judgment could be based on
nothing more than the judgment roll seems to have been required by
the existence of the very limited record of that day, which did not
include the evidence adduced at trial. Evidentiary matters were not
before the appellate courts, and it would have been impossible for
the arresting court's "successors [to] know the grounds of their
judgment,"
Sutton v. Bishop, supra, if the arresting court
considered the evidence at trial. This
Page 399 U. S. 320
Court in this case obviously has no such problem in providing
appellate review. The records before us contain complete
transcripts of the trial proceedings as a matter of course.
Accordingly, while the District Court admittedly looked to
evidence, including demeanor evidence, for its findings that Sisson
was "sincere" and was "genuinely and profoundly governed by his
conscience," this use for that purpose should not now bar this
Court from considering the District Court's action as an arrest of
judgment. As long a the evidence was used to test the
constitutionality of the charging statute as applied to the
defendant,
and not to test the sufficiency of the proof against
the allegations in the indictment, the use of the evidence was
consistent with the purposes of an arrest of judgment.
In this case, there has been no finding that Sisson did not
commit the acts charged; there has been only a holding by the trial
judge that his acts were constitutionally protected -- a holding
that stands as the sole impediment to imposing a jury verdict of
guilty; no verdict of acquittal was ever returned. Even our present
Federal Rules of Criminal Procedure make a similar distinction
between a "Motion for Judgment of Acquittal," Rule 29, and an
"Arrest of Judgment," Rule 34. The former is entered "if the
evidence is insufficient to sustain a conviction" of the offense
charged, while the latter is granted where the indictment "does not
charge an offense" at all. Rule 29 allows a judge to reserve his
decision on a motion for judgment of acquittal until after the jury
has returned a verdict. If he then grants the motion, the defendant
stands acquitted, but again only because
the evidence has
been found insufficient to support the charge. Where the grounds
for granting an "acquittal" are based on an independent legal
decision
Page 399 U. S. 321
about the interpretation or construction of the statute, the
judge's action will be an "arrest of judgment" even though he
labels it an "acquittal."
United States v. Waters, 84
U.S.App.D.C. 127, 175 F.2d 340 (1948).
I cannot believe that Congress, fully aware that no appeal was
available for a directed verdict or judgment
n.o.v.,
contemplated that this form of judicial action should be accorded
the same nonappealable status. Moreover, the sophisticated District
Judge could have entered a judgment
n.o.v. if he wanted to
avoid review or if he thought that he was indeed passing
on the sufficiency of the evidence to meet the allegations of the
indictment. Of course, his views are not controlling, but I am
comforted by his appraisal, and quite satisfied he knew precisely
what he was doing -- or thought he did on the assumption that his
action was reviewable under well established principles the Court
now ignores.
The Court also inveighs against a "broad" construction of the
Act, noting that this Court has denominated an appeal by the
Government in a criminal case as an "exceptional right," and as
"something unusual, exceptional, not favored."
Ante at
399 U. S. 291.
This is an odd characterization; the right is precisely as
"exceptional" or "unusual" as Congress makes it. This Court has no
power to define the scope of its own appellate review in this
context, and a subjective distaste for review at the instance of
government has no proper place in adjudication. The tendency to be
miserly with our jurisdiction did not prevent our construing the
three-judge court acts to include cases where statutes were held
unconstitutional as applied,
Query v. United States,
316 U. S. 486
(1942); C. Wright, Federal Courts 190 (2d ed.1970), and it should
not carry any more weight in assessing our responsibility to decide
the constitutional issues in this
Page 399 U. S. 322
case, [
Footnote 2/9] the more so
when it is a constitutional holding of great moment.
II
The second requirement, that the decision of the District Court
must rest upon the "insufficiency of the indictment," also presents
a difficult question here. The Court emphasizes, wrongly, in my
view, that both grounds upon which the District Court's decision
rests are defenses that Sisson successfully asserted. In an
ordinary case, an indictment, to be sufficient, need not anticipate
affirmative defenses. This, however, is not the ordinary case. The
indictments in cases of this nature typically charge only that the
Selective Service registrant
"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
Page 399 U. S. 323
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 States in
violation of Title 50, Appendix, United States Code, Section 462.
[
Footnote 2/10]"
Yet this allegation subsumes in its terse language a myriad of
elements that the Government may be called upon to prove if the
defense makes an appropriate challenge. Prosecutions for refusing
to submit to induction are unusual because they incorporate into
the judicial proceeding much that has occurred in the
administrative processes of the Selective Service System. All of
the courts of appeals have compensated for the administrative
proceedings by holding that the Government need not plead and prove
many elements that would normally be a part of its case-in-chief.
The courts of appeals have devised a presumption of regularity
which attaches to the official acts of the local boards that,
standing alone, is sufficient to preclude reversal of a conviction
when a given element is not raised at trial.
See particularly
Yates v. United States, 404 F.2d 462 (C.A. 1st Cir.1968)
(presumption of regularity attaches to the "order of call"
requirement). However, if the defendant succeeds in making a
prima facie case against the presumption, the Government
is put to its proof on the particular element of the offense.
See United States v. Baker, 416 F.2d 202 (C.A. 9th
Cir.1969).
By analogy, the Government is not required to plead and prove
that the defendant was properly classified in category I-A as
available for induction. Rather, the
Page 399 U. S. 324
defendant can challenge the classification at trial if he has
preserved his claim, and force the Government to prove that there
was indeed a "basis in fact," for the classification. Thus,
establishing the appropriate classification is actually an element
of the Government's case, but because of the deference given to the
administrative process that preceded the criminal proceedings, the
Government has been excused from pleading and proving it in the
indictment. Since the general allegations in the indictment
actually do subsume the element that the District Court held was
based on an invalid statute as applied to Sisson, that court's
decision was based on the "insufficiency of the indictment" within
the meaning of § 3731.
The Court also appears to assume that an indictment may be
"insufficient" because the acts charged cannot constitutionally be
made an offense,
e.g., where they show the existence of a
constitutional privilege that bars conviction. But the Court
concludes that "this indictment . . . does not allege facts that
themselves demonstrate the availability of a constitutional
privilege."
Ante at
399 U. S.
288.
In my view, the Court's suggestion is simply the same argument,
differently approached, as the argument that a motion in arrest can
be based only on facts appearing on the face of the record. In both
cases, the single question, as I see it, is whether Congress drew a
distinction, for purposes of appeal by the Government, between
cases in which the district court found the entire statute
unconstitutional and cases in which the court found the statute
unconstitutional as applied.
The view has been expressed that the Criminal Appeals Act is
badly drawn, and gives rise to a multitude of problems. We can all
agree as to the infirmities of the statute, but this is hardly an
excuse to take liberties with its plain purposes reasonably
articulated in its terms. Prior
Page 399 U. S. 325
urgings addressed to the Congress to correct this situation have
gone unheeded. But the Court's holding today is a powerful argument
to spur corrective action by Congress.
[
Footnote 2/1]
United States v. Lias, 173 F.2d 685 (C.A.4th Cir.1949),
supports the view that the standards are the same for Rule 34 and §
3731.
Rule 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."
[
Footnote 2/2]
Brief 30.
[
Footnote 2/3]
As the Court's opinion indicates,
see ante at
399 U. S.
274-276, the evidence of conscientious objection that
was admitted at trial was subject to cross-examination and was
discussed during the closing arguments, but solely in the context
of Sisson's "willfulness" in refusing induction, not respecting
whether Sisson was or was not, in fact, a sincere conscientious
objector.
[
Footnote 2/4]
Both the
Halseth and
Fruehauf cases involved
dismissals of indictments before trial. In
Halseth, the
parties had entered into a stipulation
for purposes of a motion
to dismiss. The indictment charged in the words of the statute
an unlawful use of the mails to deliver "a lottery or scheme." It
was stipulated that the particular lottery involved would come into
existence only if the addressee put the paraphernalia into
operation. The District Court granted a motion to dismiss on the
ground that the statute did not apply to lotteries, such as
defendant's ,that were not yet in existence. This Court affirmed,
necessarily relying on the particular facts about the particular
mailing under attack.
See 342 U.S. at
342 U. S.
280-281. In
United States v. Fruehauf,
365 U. S. 146
(1961), the indictment charged the appellant, again in the words of
the statute, with unlawfully delivering money to a union
representative. The District Court ruled that a trial memorandum
filed by the Government constituted a judicial admission that a
transaction at issue was a loan, and concluded that the statute did
not cover a loan. The Government appealed that construction of the
statute. The Court refused to consider that the "admission" had
clearly foreclosed the Government from proving at trial that the
loan was a sham, or otherwise constituted a transfer of something
of value apart from an ordinary loan, thus violating the statute.
Accordingly, it refused to pass on the merits of the appeal, and
remanded the case for a trial on the existing indictment.
Halseth and
Fruehauf are inconclusive
authorities on the issue of whether a stipulation can supplement an
indictment and generate a basis for review under § 3731. While the
majority recognizes that the issue has not been resolved, and
although it purports not to resolve it here, it does rely on
United States v. Norris, 281 U. S. 619
(1930), and a policy of construing the Criminal Appeals Act
narrowly to express doubt that the Solicitor General's argument
should be accepted.
Norris, however, is not a persuasive precedent. There,
the defendant was permitted to enter a plea of
nolo
contendere to the charge contained in the indictment. When he
appeared for sentencing, a stipulation of facts was filed, and he
then submitted a motion for arrest of judgment which relied on the
stipulation. The District Court denied the motion, but the Court of
Appeals reversed, concluding that the indictment was insufficient
in light of the stipulation. This Court, in turn, reversed the
Court of Appeals, holding that, after pleading guilty, a defendant
may not then stipulate facts to test the constitutionality of his
conviction. There was no suggestion that an appeal would not lie
where a statute was held unconstitutional as applied to stipulated
facts. Indeed, the Court's opinion seems at one point to suggest
that, if the defendant had withdrawn his plea, and then questioned
the constitutionality of his conviction on stipulated facts, the
question would have been open to consideration. 281 U.S. at
281 U. S.
623.
Further, the majority's ultimate conclusions about the Act
necessarily lead it into uncomfortable distinctions. For if the
Government or the parties want a constitutional ruling about the
applicability of a statute to a particular set of facts, it is only
necessary to set out those facts as a part of the indictment or
information.
[
Footnote 2/5]
See 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).
[
Footnote 2/6]
F. Frankfurter & J. Landis, The Business of the Supreme
Court 114 (1928).
[
Footnote 2/7]
"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 defeat the trial."
41 Cong.Rec. 2752 (1907) (remarks of Senator Knox).
[
Footnote 2/8]
"[A motion in arrest of judgment] is a case in which the
defendant has been tried, in which he has been found guilty on the
merits of the case, and, by reason of some technicality, if I may
use the term in its broad sense, the hand of the court is arrested
from imposing the penalty upon him."
41 Cong.Rec. 2753 (197) (remarks of Senator Patterson).
[
Footnote 2/9]
The one case in which this Court has even tangentially
considered whether evidence adduced at trial can ever be considered
as the basis of a motion in arrest of judgment was
United
States v. Green, 350 U. S. 415
(1956). There, the majority of the Court was impelled to explain
the basis for its decision by explicitly pointing out that
"the record does not contain the evidence upon which the
[district] court acted. . . . We rule only on the allegations of
the indictment. . . ."
350 U.S. at
350 U. S. 421.
MR. JUSTICE DOUGLAS, with whom Chief Justice Warren and MR. JUSTICE
BLACK joined, dissented on the ground that the District Court's
"order granting the motions in arrest of judgment rested at least
in part upon the insufficiency of the evidence to support the
conviction."
Ibid. But neither the position adopted by the
majority nor that taken by the dissenters in
Green is
remotely dispositive of the present case. Here, in
contradistinction to the dissenters' view of the circumstances in
Green, evidence adduced at trial was used by the District
Court solely for the purpose of testing the constitutionality of a
statute as applied; the District Court's opinion concedes the
sufficiency of the evidence to sustain the verdict
if the
constitution views expressed in the opinion are not
sustained.
[
Footnote 2/10]
App. 6.
MR. JUSTICE WHITE, with whom THE CHIEF JUSTICE and MR. JUSTICE
Douglas join, dissenting.
I
I agree with THE CHIEF JUSTICE that this case can be appealed by
the Government under the "motion in arrest" provision of the
Criminal Appeals Act. In contrast to the rather clear remedial
purpose of the Act, not a single passage in the legislative history
indicates awareness by Congress that the words it was using had the
effect of distinguishing cases where a congressional Act was held
invalid on its face from cases where it was invalidated as applied
to a sub-class within the Act's intended reach. In both cases, the
indictment is "insufficient" to state a valid offense. [
Footnote 3/1] In both cases, any "factual
findings" necessary to give the particular defendant the benefit of
the constitutional ruling are little more than findings as to the
defendant's standing to raise the constitutional issue -- they are
not findings as to the sufficiency of the evidence to prove the
offense alleged in the indictment. [
Footnote 3/2] Thus, if Judge Wyzanski, without making
any findings as to Sisson's sincerity, had held
Page 399 U. S. 326
the Selective Service Act unconstitutionally overbroad because
it purported to subject to the draft in violation of the Free
Exercise Clause sincere, nonreligious objectors, this Court would
clearly have jurisdiction and would face the question whether
Sisson could raise the claim without showing that he was a member
of the allegedly protected class.
Cf. Thornhill v.
Alabama, 310 U. S. 88
(1940). If such a showing had to be made, as the judge here held it
did, the question of standing and the facts relevant to that
question are surely distinct from the question of whether the
defendant committed the offense, or the question of the validity
vel non of the statute. [
Footnote 3/3]
Cf. Association of Data Processing
Service Organizations v. Camp, 397 U.
S. 150 (1970);
Barlow v. Collins, 397 U.
S. 159 (1970).
II
We asked the parties in this case to consider whether 18 U.S.C.
§ 3731 confers jurisdiction on the ground that the lower court had
sustained "a motion in bar, when the defendant has not been put in
jeopardy." The majority, after a lengthy discussion of the "motion
in arrest" provision, condescends to address a few remarks to this
question, with the suggestion that it really need not discuss the
issue at all, since it has concluded that Judge Wyzanski's action
amounted to "an acquittal." As MR.
Page 399 U. S. 327
JUSTICE BLACK's concurrence indicates, the lengthy discussion of
the "motion in arrest" provision is equally superfluous if indeed
it is so clear that Sisson has been "acquitted." In reality, the
bald assertion that Sisson has been "acquitted" simply begs the
matter at issue: until one knows what a "motion in bar" is, as well
as a "motion in arrest," and how the granting of such motions
differs from granting a judgment of acquittal, one cannot
confidently attach any label to Judge Wyzanski's action.
The only reason the majority gives for concluding that Sisson
has been acquitted is based, not on what actually happened, but on
what
might have happened. Since Judge Wyzanski
could
have submitted the case to the jury on instructions reflecting
his view of the law, and since the jury, so instructed,
could
have returned a verdict of "not guilty," therefore we must
pretend that that is what has actually happened. That suggestion is
nonsense. One does not determine "what, in legal effect, [Judge
Wyzanski's decision] actually was,"
ante at
399 U. S. 279
n. 7, by asking "what in legal effect the decision might have
been." If that were the key question, then this Court should not
have had jurisdiction in
United States v. Covington,
395 U. S. 57 (1969)
(HARLAN, J.). There, the trial judge accepted the defendant's
argument that the Fifth Amendment prevented the Marihuana Tax Act
from constitutionally being applied to him. Under the majority's
view, that action 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. Indeed, if applied consistently, the majority's theory
would mean that there is no case that could be appealed to this
Court under the
Page 399 U. S. 328
"motion in bar" provision of the Criminal Appeal Act. For it
will always be true that a judge
might have sent the case
to the jury under instructions reflecting his view that the motion
in bar was good, so that, if the jury found the facts relied on in
the motion, it should acquit. [
Footnote
3/4]
Page 399 U. S. 329
The difference between "what might have been" and what actually
happened in this case is large, and critical. Where the jury
actually "acquits" under an erroneous instruction, a successful
appeal leading to reversal and a new trial would raise serious
constitutional problems by placing the defendant through the
hazards of another trial for the same offense. In this case,
however, there is no possibility of subjecting Sisson to another
trial, or of overturning a factfinder's decision that, whatever the
law, Sisson should go free. If Judge Wyzanski's legal theory is
incorrect, the jury's verdict of guilty -- with judgment no longer
"arrested" -- simply remains in effect.
It was precisely this distinction that Senator Knox was
referring to in the passage quoted in the majority opinion,
ante at
399 U. S. 289:
the defendant retains the benefit of any error whatever committed
by the court "
in the trial"; but the Government gets an
appeal "upon questions
Page 399 U. S. 330
of law raised by the defendant to defeat the trial." The
distinction is also reflected in the majority's quotation from
United States v. Ball, ante at
399 U. S.
289-290, where the question of what constitutes an
"acquittal" is tied to the question of whether the defendant would
be put "twice in jeopardy" by an appeal.
I suspect that the Court's reluctance to discuss the "motion in
bar" provision and to distinguish the granting of such motions from
an acquittal stems from the fact that, unlike the "motion in
arrest," there is no doubt that a "motion in bar" properly sets
forth an affirmative defense, which necessarily requires resort to
facts not found in the indictment or on the face of the "record."
Thus, most of the majority's argument that this case is not
appealable as a "motion in arrest" because "[t]he decision below
rests on affirmative defenses,"
ante at
399 U. S.
287-288, is simply irrelevant as far as the "motion in
bar" is concerned.
In fact, as the majority seems to concede by its reluctance to
reject square precedent on the issue,
see ante at
399 U. S. 300
n. 53, our cases make clear that the phrase "motion in bar" would
include a plea like Sisson's that the selective service laws are
unconstitutional as applied to him. The Court has never adopted the
view that a "motion in bar" encompasses only the common law
defenses of
autrefois acquit, autrefois convict, and
pardon. [
Footnote 3/5] Neither did
Congress, when it passed the Act. The debates show that the plea in
bar was thought to embrace such a variety of defenses as the
statute of limitations,
e.g., 41 Cong Rec. 2749, and a
plea of Fifth Amendment
Page 399 U. S. 331
immunity,
see 41 Cong.Rec. 2753. The most thorough
discussion of the "motion in bar" in this Court occurs in the
concurring and dissenting opinions in
United States v.
Mersky, 361 U. S. 431
(1960). MR. JUSTICE BRENNAN argued that a motion in bar would
encompass every possible affirmative defense that would prevent
retrial. MR. JUSTICE STEWART argued for a narrower interpretation,
similar to the concept of a plea in confession and avoidance,
i.e., a plea that "did not contest the facts alleged in
the declaration, but relied on new matter which would deprive those
facts of their ordinary legal effect."
Id. at
361 U. S.
457.
Even under the narrower interpretation of MR. JUSTICE STEWART,
Sisson's plea qualifies as a "motion in bar." For as the majority's
opinion makes clear, the crux of the case against Sisson was simply
whether or not he had willfully refused to submit to induction; the
question of his sincerity was "new matter" relied on to deprive the
fact of his willful refusal of its ordinary legal effect.
See majority opinion,
ante at
399 U. S. 276;
United States v. Blue, 384 U. S. 251,
384 U. S. 254
(1966) (HARLAN, J.). Just as our cases have permitted the "motion
in bar" to embrace limitations pleas,
see, e.g., United States
v. Goldman, 277 U. S. 229
(1928), and pleas of constitutional privilege,
see United
States v. Murdock, 284 U. S. 141
(1931), so too they permit the "motion in bar" to reach cases of
this sort, attacking the validity of the statute as applied to the
defendant.
See United States v. Covington, 395 U. S.
57 (1969) (HARLAN, J.);
United States v. Blue,
supra, at
384 U. S. 254
(HARLAN, J.).
Procedurally, the fact that the plea is sustained only after a
jury verdict of conviction -- and the fact that the judge labeled
his action as something other than a "motion in bar" -- does not
prevent finding a "motion in bar."
United States v.
Zisblatt, 172 F.2d 740, 742 (C.A.2d Cir.),
appeal
dismissed, 336 U.S. 934 (1949). Even
Page 399 U. S. 332
the legislative history recognizes that such pleas could be
sustained after the trial had begun. 41 Cong.Rec. 2749 (remarks of
Senator Rayner). Nor is there any doubt -- unlike the case of a
motion in arrest -- that a proper motion in bar results even though
factual issues relevant to the motion have to be tried.
See 41 Cong.Rec. 2194 (remarks of Senator Whyte);
id. at 2753 (remarks of Senator Patterson);
United
States v. Zisblatt, supra. Indeed, MR. JUSTICE HARLAN recently
referred to the possibility of trying facts to the judge that were
relevant to the motion in bar, and separate from the general issue.
See United States v. Covington, supra, at
395 U. S. 60. In
his words,
"[a] defense is thus 'capable of determination' [without trial
of the general issue] if trial of the facts surrounding the
commission of the alleged offense would be of no assistance in
determining the validity of the defense."
Ibid. That description fits this case precisely, since,
as already noted, the majority itself takes careful pains to point
out that the "general issue" -- whether Sisson willfully refused
induction -- was at all times separate from the issue raised by
Sisson's constitutional claim. [
Footnote 3/6]
Page 399 U. S. 333
This case, then, is indistinguishable, as far as the "motion in
bar" provision is concerned, from
United States v. Zisblatt,
supra, which the majority cites with approval throughout its
opinion. There, as here, the defendant
Page 399 U. S. 334
moved for dismissal of the indictment on the basis of an
affirmative defense -- in that case, the statute of limitations.
There, as here, the judge reserved ruling on the motion until after
the jury had returned a verdict of guilty. There, as here, the
judge then granted the defendant's motion, relying on matters
"outside the record." The Government appealed to the Court of
Appeals, where the question became whether or not the appeal should
have been taken directly to this Court under the Criminal Appeals
Act. Judge Learned Hand, in deciding that the trial court's action
amounted to sustaining a motion in bar, made short shrift of the
argument that the case was indistinguishable from the case of a
directed verdict of acquittal.
"Had the trial judge directed a verdict, so that it would have
been necessary upon reversal to subject the defendant to trial
before a second jury, that would be 'double jeopardy,' but,
although the Constitution gives an accused person the benefit of
any mistakes in his favor of the first jury he encounters, whether
it has passed upon his guilt or not, it does not extend that
privilege to mistakes in his favor by judges. Indeed, were the
opposite true, all appeals from decisions in arrest of judgment
would be constitutionally futile, because no judgment of conviction
could be entered when they were reversed."
172 F.2d at 743.
Page 399 U. S. 335
The sole question, then, in this case as in
Zisblatt,
is whether the defendant has been "put in jeopardy" as that phrase
is used in the Criminal Appeals Act. That question, in turn,
centers on whether the phrase is to be read literally, in which
case a defendant would be in jeopardy as soon as a jury was
impaneled, or whether the phrase is to mean "constitutional" or
"legal" jeopardy, in the sense that, even if the Government were to
succeed on appeal, it would be unable to take advantage of its
success in new proceedings against the defendant. Although the
Government has chosen to read the statute in the former, literal,
sense, this Court has never resolved the issue. Judge Learned Hand
thought there was a "more than plausible argument" for the latter,
"legal jeopardy," view, but the Government dismissed its appeal to
this Court before the question could be decided.
United States
v. Zisblatt, supra, at 742.
The legislative history of the 1907 Act unmistakably shows that
Congress meant to allow the Government an appeal from a decision
sustaining a motion in bar in every case except where the defendant
was entitled to the protection of the constitutional guarantee
against double jeopardy. I find the debates so convincing on that
point that I am at a loss to understand why the Government has so
readily conceded the issue unless it be to maintain the appearance
of consistency and to protect its interests in securing new
criminal appeals legislation before Congress. [
Footnote 3/7] Certainly that concession
Page 399 U. S. 336
does not bind this Court; [
Footnote
3/8] even more certainly, it is no excuse for the majority's
failure to conduct its own examination of the relevant debates.
Out of three full days of debate in the Senate, covering more
than 30 pages of the Congressional Record,
see 41
Cong.Rec. 2190-2197, 2744-2763, 2818-2825, the majority finds a
total of three passages to cite in a footnote as support for its
interpretation,
see ante at
399 U. S.
304-305, n. 57. In each case, the statements, placed in
context, prove just the opposite of the majority's conclusion. The
first reference, to a passage before debate even began, 40
Cong.Rec. 9033, is to Senator Spooner's
Page 399 U. S. 337
question whether the bill applied only to questions arising
before the impaneling of the jury. As the majority acknowledges,
Senator Nelson immediately corrected Senator Spooner, pointing out
that the key question was "jeopardy," not the impaneling of the
jury. The entire brief exchange occurred before the bill was
debated, further consideration having immediately been postponed by
the objection of other Senators to pursuing the matter at that
time.
See F. Frankfurter & J. Landis, The Business of
the Supreme Court 117 n. 68 (1928). When debate was resumed at the
next session of Congress, Senator Spooner unmistakably indicated
that jeopardy was being used in the constitutional, legal sense, in
direct opposition to the views the majority now tries to ascribe to
him:
"The question is whether it subjects a man under any aspect of
it to the danger of double jeopardy."
"
* * * *"
"I am content to leave it, under the bill, if it shall become a
law, to the Supreme Court of the United States. It is their
function to determine what is jeopardy. It is their function to
protect the citizens of the United States against any invasion of
the constitutional guaranty as to double jeopardy. I think we can
rely upon the court to protect as far as the Constitution requires
it all defendants. . . ."
41 Cong.Rec. 2762-2763 (remarks of Sen. Spooner).
In the second passage, 41 Cong.Rec. 2191, the majority quotes
Senator Nelson for the proposition that no appeal would lie where a
jury had been impaneled. The actual quotation is that no appeal
would lie "where a jury has been impaneled
and where the
defendant has been tried. . . ." 41 Cong.Rec. 2191 (emphasis
added). In context, it is clear that Senator Nelson is venturing an
interpretation of "jeopardy" in the legal sense. The whole dispute
at this point in the debate is
Page 399 U. S. 338
primarily between Senator Rayner, who opposed the bill, and
Senators Bacon and Nelson, who supported the bill. The proponents
were at pains to show that a person could not be "put twice in
jeopardy" under any of the provisions of the bill, 41 Cong.Rec.
2193 (remarks of Sen. McCumber; remarks of Sen. Bacon). Senator
Rayner was intent on showing how difficult it was for anyone to
give an adequate definition of just what "legal jeopardy" is -- he
supported a return to the House suggestion, which would have given
the defendant the benefit of his favorable decision whether or not
he had been "put in jeopardy." But not a single passage can be
cited to show that either side had the slightest inkling that
"jeopardy" was being used in any but its technical, legal sense, as
interpreted by this Court and state courts. That was the whole
point of Senator Rayner's objection: "jeopardy" was too vague a
term, because nobody could decide exactly when constitutional
jeopardy had attached. How the majority can rely on Senator Nelson
for the conclusion that "jeopardy" means "literal" jeopardy is
particularly difficult to understand, given the Senator's own
unambiguous explanation that, as author of the bill, what he meant
was "constitutional" jeopardy:
"I aimed to put the bill in such a form that it would cover
exactly those cases in which the defendant had not been
put in
jeopardy under the Constitution of the United States. I
believe that the bill is limited strictly to that matter."
41 Cong.Rec. 2757 (emphasis added).
Senator Bacon, during this same exchange, noted that the
"jeopardy" provisions had been put in "out of abundance of
caution," 41 Cong.Rec. 2191. He proceeded to explain by his remarks
that he meant precisely what the majority today declares he could
not have meant -- namely, that Congress was simply emphasizing that
it was not attempting to subject a defendant to constitutional
Page 399 U. S. 339
double jeopardy by a successful government appeal. In fact, when
one of the Senators asked whether "jeopardy" was to be taken in a
possibly literal sense, Senator Bacon hastened to reply:
"That is not
what the law means by being put in jeopardy at
all. The words 'being in jeopardy' are entirely a technical
phrase, which does not relate to the fact that a man is in danger
as soon as an indictment is preferred against him."
41 Cong.Rec. 2191 (emphasis added). It is hardly "superfluous"
for Congress to guard against a construction of an Act that might
render the Act unconstitutional. And the fact that the majority
would have written the statute differently to avoid what it calls a
"superfluous" reading is no excuse for ignoring the explicit
indication that that is exactly the reading that Congress meant the
phrase to bear. [
Footnote 3/9]
Page 399 U. S. 340
The majority's final passage refers to a remark by Senator
Patterson suggesting that a motion in arrest was the only provision
under the bill that could be raised after a trial had begun. As the
majority concedes, one need only read on a bit further to discover
that Senator Patterson immediately retracted that suggestion when
challenged, insisting that a "motion in bar" could also be granted
after trial had begun, and that an appeal would lie as long as no
problem of "constitutional jeopardy" was presented. Indeed, Senator
Patterson argued vigorously that there would have been jurisdiction
in the
Beef Trust Case -- a case in which the motion in
bar was not only granted after trial had begun, but was also
reflected in the judge's instructions to the jury. Senator
Patterson's remarks are particularly interesting because, apart
from whether he is right on the question of constitutional
jeopardy, he makes clear the distinction between a motion in bar
and an acquittal which the majority blithely ignores:
"A special plea in bar . . . is a plea that does not relate to
the guilt or innocence of the defendant in the sense as to whether
he did or not commit the act for which he was indicted. A special
plea in bar is that which is set up as a special defense
notwithstanding the defendant may be guilty of the offenses with
which he is charged; it is for some outside matter; yet it may have
been connected with the case. The special plea in bar that was
filed by the indicted Chicago packers is a very good illustration
of that. Their plea in bar set forth the fact of their having been
induced or led, whatever it may have been, to make communications
to the
Page 399 U. S. 341
law officers of the Government with reference to their business
that gave the district attorney information which enabled him to
bring about the indictments and to help in their prosecution. That
had no reference to the guilt or innocence of the accused. It was a
pleading of fact that was independent of the crime for which those
packers had been indicted."
"Therefore, Mr. President, there could be no jeopardy in a case
of that kind where there was a decision upon the special plea in
bar, because it is not under a plea of guilty or not guilty that
the insufficiency of a special plea in bar is determined; it is
non obstante whether the defendant is guilty or not
guilty."
41 Cong.Rec. 2753.
It is obvious from these remarks that Senator Patterson did not
think that the question of "jeopardy" under the "motion-in-bar"
provision was simply a question of whether the jury had been
impaneled. [
Footnote 3/10]
This interpretation is made doubly clear by the remarks of
Senator Nelson, the leading proponent of the bill. He also
addressed himself to the
Beef Trust Case, and, unlike
Senator Patterson, he suggested that that case could not have been
appealed under the Act. But the reason he gave for that conclusion
was not that the jury had been impaneled, but that the jury had
been impaneled
and had returned a verdict of not guilty
under the judge's instructions, thus placing the defendants in
"legal jeopardy":
"In that case, a jury was impaneled, and the question whether
the defendants were entitled to immunity
Page 399 U. S. 342
under the immunity law because they had furnished Mr. Garfield
and the officials of his Bureau information was submitted to the
jury, and the jury, under instructions of the court, found for the
defendants. In that case, the defendants,
under the
Constitution, had been in jeopardy, and, in that beef-trust
case, no appeal could lie."
41 Cong.Rec. 2757 (emphasis added).
See 41 Cong.Rec.
2750 (remarks of Senator Nelson).
Senator Nelson was thus talking about the majority's "might have
been case" -- the case where the judge gives the motion in bar
issue to the jury under his novel view of the law, so that a
successful government appeal would require retrying the defendant.
In the immediately following passage, Senator Nelson makes clear
that, if the facts pleaded in the special issue are not submitted
to the jury, but tried to the judge, there would be no bar to
taking an appeal. But, in both cases, Senator Nelson, like Senator
Patterson, is quite obviously giving his views as to what
"constitutional jeopardy" means.
While the debates are replete with other indications that
Congress' concern was with "double jeopardy," not "literal
jeopardy," the clearest such indication occurs in this very
exchange between Senator Rayner, who announced his opposition to
the bill in any form, 41 Cong.Rec. 2745, and Senators Spooner,
Patterson, and Nelson -- proponents of the bill. The exchange
occupied most of the second day of the three days of debate in the
Senate, and centered almost entirely on Senator Rayner's proposed
amendment. The example that Senator Rayner used to illustrate the
difficulties he saw in the bill was a hypothetical case in which a
plea in bar -- a limitations plea -- was sustained halfway through
the trial.
See 41 Cong.Rec. 2749. In that case, Senator
Rayner argued, no one could say with certainty whether the
defendant
Page 399 U. S. 343
had been put in jeopardy, and hence whether he could
constitutionally be retried if the Government's appeal were
successful. Senator Rayner did not want to leave the defendant's
fate to depend on "this howling wilderness of confusion upon the
subject of what constitutes
legal jeopardy." 41 Cong.Rec.
2750 (emphasis added). His amendment would thus have guaranteed
that a defendant could never be retried -- whatever the ultimate
resolution of the "legal jeopardy" question. Those who opposed the
amendment argued that, if it had any substantive effect, it would
make the question on any appeal "moot"; that it was enough to make
sure that the Government was not allowed to secure a reversal and
proceed again where the result would place the defendant in "double
jeopardy", and that the bill would leave to the Supreme Court the
question of what is "jeopardy," and hence protection "against any
invasion of the constitutional guaranty as to double jeopardy." 41
Cong.Rec. 2761-2763;
see also 41 Cong.Rec. 2193. But it is
clear -- indeed, it was again crucial to Senator Rayner's argument
-- that the Senators assumed that "jeopardy" was being used in the
legal sense:
"The question is whether it subjects a man under any aspect of
it to the danger of double jeopardy."
"
* * * *"
"The Senator [Rayner] says he does not care whether it is double
jeopardy or not. Even if a man under the Constitution may properly
and lawfully be put on trial again, if he has been tried once, even
though it were a mistrial, if he had been for a moment in jeopardy,
he insists that we shall provide by law, no matter what the case
may be, that he shall not be tried again; that he shall go
acquit."
"
* * * *"
"The matter has been thoroughly argued. I am content to leave
it, under the bill, if it shall become
Page 399 U. S. 344
a law, to the Supreme Court of the United States. It is their
function to determine what is jeopardy. It is their function to
protect the citizens of the United States against any invasion of
the constitutional guaranty as to double jeopardy. I think we can
rely upon the court to protect -- as far a the Constitution
requires it -- all defendants, without supplementing the
Constitution by the Senator's amendment to this bill."
41 Cong.Rec. 2762763 (remark of Senator Spooner). [
Footnote 3/11]
Senator Rayner's hypothetical example of a plea in bar sustained
after trial had begun -- an example accepted without question by
Senators Patterson, Nelson, and
Page 399 U. S. 345
Spooner, and every other Senator participating in the debate --
completely undercuts the majority's assertion that Congress thought
there could be no appeal once the jury had been impaneled. Indeed,
in the face of the argument over the meaning of "jeopardy" and
Senator Rayner's vigorous attack on the vagueness of that term, it
is nothing short of incredible for the majority to suggest that
Congress left that language in the Act intending it to be
interpreted as providing "a clear, easily administered test,"
ante at
399 U. S. 307.
If Congress had intended the majority' interpretation, it would
have been both simple and logical to explicitly limit appeals to
cases "where the jury has not yet been impaneled," thus avoiding
the possibility of confusion which had been the very topic of
discussion for three full days of debate.
The plain fact of the matter is that the majority's
post
hoc rationalization of the Act simply was not that of
Congress. While the debates show considerable disagreement about
the meaning of "jeopardy" in the legal sense, there is not the
slightest suggestion anywhere in the legislative history that
"jeopardy" is being used in any other sense. Even where references
occur to the impaneling of the jury as the moment when jeopardy
attaches, it is clear that jeopardy is still being used in its
legal sense -- after all, as the majority itself notes,
ante at
399 U. S. 305,
the impaneling of the jury does, in fact, often become the
constitutionally relevant point in determining that "legal
jeopardy" has attached to prevent a reprosecution. But the one
point on which there was unanimous agreement -- even from Senator
Rayner,
see, e.g., 41 Cong.Rec. 2748 -- about the meaning
of "jeopardy" was that, where a convicted defendant, on his own
motion, had secured the arrest of a jury's verdict of guilty, he
had not been placed in "jeopardy."
"[T]he defendant could not complain either if the judgment of
the court shall be entered upon the verdict or a new trial
Page 399 U. S. 346
shall be ordered, because it is giving to the defendant a new
opportunity to go acquit when, under the trial that was had, he had
been convicted."
41 Cog. Rec. 2753.
For this Court to hold that Sisson has been placed in jeopardy
under the "motion in bar" provisions, thus defeating jurisdiction,
the Court must be prepared to hold that a successful appeal by the
Government, resulting in an order that judgment be entered on the
verdict, would violate Sisson's double jeopardy protection. Judge
Learned Hand refused even to consider such a suggestion in
Zisblatt:
"So long as the verdict of guilty remains as a datum, the
correction of errors of law in attaching the proper legal
consequences to it [does] not trench upon the constitutional
prohibition."
172 F.2d at 743.
III
I find extremely peculiar the path that the Court follows in
reaching its conclusion that we cannot hear this case. The "motion
in arrest" provision is confined to its early common law sense,
although there is absolutely no indication that Congress was using
the phrase in that sense, and we have never similarly limited the
"motion in bar" provision to its common law scope. The alleged
trouble with the "motion in arrest" is not any problem of jeopardy,
but the fact that Judge Wyzanski relied on facts outside the face
of the "record." Conversely, the trouble with the "motion in bar"
provision is not the use of outside facts, but solely the fear that
Sisson was "put in jeopardy." If this were a motion in arrest,
there would be no "jeopardy" problem, and if this were a motion in
bar, resort to outside facts would pose no problem. The apparent
inconsistency and the refusal to hear the case appear to be due to
a dogged determination to fit Judge Wyzanski's action into one
"common law pigeonhole,"
United States v. Mersky,
361 U. S. 431,
361 U. S. 442
(BRENNAN, J., concurring), or the other
Page 399 U. S. 347
while paying scant attention to the reason for trying to make
the fit in the first place, with the result that Judge Wyzanski's
action is to be given the no less distorting label of
"acquittal."
The question in this case should simply be whether or not a
judge who upholds a claim of constitutional privilege, thereby
declaring the statute unconstitutional as applied, has entered a
judgment that Congress intended this Court to be able to review.
Surely, in a statute as unclear and ambiguous as the majority says
this unhappy Act is, the "words" of the statute are only the first
place to start the task of interpretation. The primary guide to
interpretation should be the statute's purpose, as indicated by the
evil that prompted it, and by the legislative history.
The Act was passed to remedy the situation that gave a single
district judge the power to defeat any criminal prosecution
instituted by the Government, and to annul, as unconstitutional,
attempts by Congress to reach a defendant's specified conduct
through the use of the criminal machinery. Over and over, this
theme is repeated in the debates on the bill, dominating every
other topic of discussion except the concern for safeguarding the
defendant's privilege against double jeopardy. As THE CHIEF
JUSTICE's opinion details, it is difficult to imagine a case more
closely fitting the type of case in which Congress intended to
allow an appeal than the instant one.
The majority suggests that we must remember that the Act was "a
compromise," and that Congress was very concerned about not unduly
encroaching on the rights of the defendant. But the "compromise"
between the House and the Senate was only over the areas in which
to allow appeal -- there was complete accord that constitutional
cases of this sort constituted one of those areas; they were,
indeed, the Act's
raison d'etre. Similarly,
Page 399 U. S. 348
while Congress was concerned to protect the defendant's rights,
it had no doubt that those rights were not invaded where a
defendant had been found guilty, and the Government appealed the
judge's decision that, for legal reasons, the verdict could not
stand. The majority, in short, pays lip service to the policies of
the Act without ever applying those policies to the question
presented in the case before it. Judge Wyzanski, anxious to do his
duty as he saw it and yet aware that ultimate resolution of the
constitutional issue properly belongs in this Court, had two means
of passing on the issue while still protecting Sisson's rights: he
could have granted Sisson's motion after a pretrial hearing,
see United States v. Covington, 395 U. S.
57,
395 U. S. 60;
Fed.Rules Crim.Proc. 12(b)(1), 12(b)(4), or he could, as here,
grant the motion only after the jury's verdict of guilty forced him
to reach the constitutional question. In either case, none of the
interests reflected in the jeopardy provisions of the Constitution
-- protecting defendants from repeated and harassing trials for the
same offence -- is in any way endangered. In fact, Sisson's
interests if anything are less in jeopardy in the second case than
the first, where the Government's appeal would force a long delay
in beginning the trial itself.
The conclusion that Congress intended judgments of this kind to
be reviewed seems to me so clear that I suspect the majority's
neglect of this aspect of the statute amounts to a tacit admission
that policy and purpose point overwhelmingly toward finding
jurisdiction. If that is the case, then to hang Congress on the
technical meaning of the obscure legal terms it happened to use is
not only inappropriate, but is strangely out of line with decisions
that leap over the plain meaning of words in other contexts to
reach conclusions claimed to be consistent with an Act's broader
purposes.
See Welsh v. United States, 398 U.
S. 333 (1970);
Boys
Page 399 U. S. 349
Markets, Inc. v. Retail Clerks Union, 398 U.
S. 235 (1970);
Toussie v. United States,
397 U. S. 112
(1970);
United States v. Seeger, 380 U.
S. 163 (1965). Compared to some of these examples of
"statutory construction," it is child's play to conclude that
Congress did not really mean to limit "motion in arrest" to its old
common law meaning, or that, at least, if it did, it thought
decisions such as Judge Wyzanski's would have been appealable under
some other provision, such as the "motion in bar" as long as there
was no danger of encroaching on the defendant's jeopardy
interests.
Admittedly, the issues raised by Sisson are difficult and
far-reaching ones, but they should be faced and decided. It is, to
be sure, much more comfortable to be able to control the decision
whether or not to hear a difficult issue by the use of our
discretion to grant certiorari. But that is no excuse for ignoring
Congress' clear intent that the Court was to have no choice in
deciding whether to hear the issue in a case such as this. The fear
expressed in the prevailing opinion that, if we accept
jurisdiction, we shall be "cast adrift" to flounder helplessly,
see ante at
399 U. S. 299,
has a flavor of nothing so much as the long-discarded philosophy
that inspired the old forms of action, and that led to the solemn
admonition in 1725 that "[w]e must keep up the boundaries of
actions, otherwise we shall introduce the utmost confusion."
Reynolds v. Clarke, 93 Eng.Rep. 747, 748 (K.B. 1725). I
cannot agree. I would find jurisdiction.
[
Footnote 3/1]
Failure to set out the elements of a valid offense against the
named defendant is the only way an indictment could ever be
"insufficient" because of the unconstitutionality (as opposed to
the construction) of the underlying statute.
[
Footnote 3/2]
The majority, as THE CHIEF JUSTICE's opinion makes clear and as
I discuss in more detail later,
infra at
399 U. S.
331-332 and n. 6,
399 U. S.
331-334, repeatedly ignores this difference between the
facts necessary to secure relief for Sisson on his constitutional
claim and the facts relevant to the offense of willfully refusing
induction.
[
Footnote 3/3]
The majority seems to recognize that it would have difficulty
justifying a refusal to hear an appeal challenging Judge Wyzanski's
ruling on the Establishment Clause, simply because findings had to
be made as to the defendant's standing to raise the issue.
See
ante at
399 U. S. 284
n. 16. But there is no real difference in this respect between
Judge Wyzanski's free exercise and establishment rulings: both --
as the majority concedes,
ibid. -- require factual
determinations that Sisson belongs to the class that is entitled to
raise the constitutional claim that is being asserted. If the
ruling on the first is "an acquittal," so is the ruling on the
second, since the judge might have sent the establishment issue to
the jury too.
See infra at
399 U. S.
327-328.
[
Footnote 3/4]
Consistently applied, the majority's theory would make no
criminal case appealable to this Court. For even where a judge
dismisses an indictment or grants a motion in arrest because of
defects "on the face of the record," it is always true that he
might have sent the case to the jury, instructing it to
acquit if it found the facts alleged in the indictment, thus
insulating the case from renew because of the intervening jury
acquittal.
The majority's protest that its conclusion does not rest on
"what might have happened,"
ante at
399 U. S. 290
n.19, simply serves to highlight the
ipse dixit nature of
its opinion. For the plain fact is that no other reason is ever
given to explain why Judge Wyzanski's action amounted to a
post-verdict directed acquittal. The question in this case is
whether an affirmative defense, relying on facts developed at trial
and sustained by the trial judge after a jury verdict of guilty,
can amount to an appealable "motion in bar." It is no answer to
this question simply to repeat that this is a case in which Judge
Wyzanski, after a verdict of guilty, sustained Sisson's defense on
facts developed at the trial -- a clearer case of question-begging
can hardly be imagined. Such a simple restatement only poses the
question that is to be decided: does such action amount to a
nonappealable "acquittal" and, if so, why?
One answer to this question is suggested by the majority in its
citation to
United States v. Ball, ante at
399 U. S.
289-290. An acquittal is the type of judgment that
cannot be reviewed without putting the defendant twice in jeopardy
for the same offense, in violation of the Constitution. Indeed, the
legislative history shows that Congress was well aware of the
Ball decision, and strongly suggests that Congress thought
that nonappealable "acquittals" were only those in which review was
incompatible with the double jeopardy provisions of the Fifth
Amendment.
See, e.g., 41 Cong.Rec. 2193. But despite the
citation, I cannot believe that the majority really means to
suggest that Congress could not constitutionally authorize an
appeal in a case precisely parallel to this one in accordance with
currently sought legislation. That would indeed be throwing the
baby out with the bathwater in order to declare this case an
"acquittal," and thus avoid being forced to reach the merits
now.
What other reason is there for deciding that this is a case of
"acquittal"? One obvious suggestion is that the question of whether
a judge's action amounts to an "acquittal" admits of no single
answer, but depends on the reasons for making the inquiry in the
first place. Here, the inquiry is whether Congress meant to allow
an appeal where a statute had been held invalid as applied to a
class within its reach and where the defendant's constitutional
jeopardy interests are in no way threatened by the appeal. The
majority's absolute refusal to discuss or respond to the
legislative history on this question, set out below,
see
infra at
399 U. S.
335-346, indicates that this approach would also lead to
the conclusion that Judge Wyzanski granted an appealable "motion in
bar," rather than an "acquittal."
The only other noncircular answer that I can find in the
majority's opinion is that this is an acquittal because the judge
"might have" sent the case to the jury under his novel
instructions, resulting in a verdict of not guilty from which an
appeal would indeed jeopardize the defendant's constitutional
interest. That answer, as the majority's discomfiture indicates, is
not a very good one.
[
Footnote 3/5]
One will search the majority's opinion in vain for an
explanation as to why "motion in arrest" must be pinned to its
common law meaning, while "motion in bar" -- which the majority
also concedes had a unique meaning at common law,
see ante
at
399 U. S. 300
n. 53 -- has never been so confined.
See United States v.
Covington, 395 U. S. 57 (1969)
(HARLAN, J.);
United States v. Blue, 384 U.
S. 251 (196) (HARLAN, J.).
[
Footnote 3/6]
The majority concedes that the judge's instructions to the jury
excluded the question of Sisson's sincerity from the question of
Sisson's guilt under the Act.
See ante at
399 U. S. 276.
Indeed, Sisson's sincerity could not possibly bear on whether
Sisson had willfully refused induction: since Sisson did not seek a
I-O classification, he could not even argue his "sincerity" to show
"no basis in fact" for his I-A classification. Moreover, as the
majority again points out,
ante at
399 U. S. 274
n. 2, even Sisson recognized that his "selective" objection to war
foreclosed him from obtaining C-O status under the Act. Sisson's
sincerity was thus relevant only to his constitutional defense, and
was as distinct from the issue on the merits as would have been a
claim that the prosecution was time-barred. In that sense, the
factual questions relevant to Sisson's motion were not part of "the
general issue." I do not read THE CHIEF JUSTICE's opinion, which
discusses Sisson's defense in a wholly different context, as
suggesting anything different. The majority's suggestion,
ante at
399 U. S. 299,
that a defense of privilege in a speech case may involve facts
inextricably intertwined with the general issue, and the majority's
reference to
United States v. Fargas, ante at
399 U. S. 301,
are perfect examples of repeated refusal to come to grips with the
facts of this particular case where the issues were not and could
not have been intertwined. Whether Sisson might have demanded a
jury trial on the facts relevant to his motion is also a question
not presented here, anymore than it was in
United States v.
Covington, 395 U. S. 57 (1969)
(HARLAN, J.).
The legislative history makes clear that trying facts that go to
the plea, as opposed to facts that go to the "general issue" in the
sense just described (whether the defendant committed the act)
results in an appealable motion in bar as long as the defendant has
not been "put in jeopardy."
Compare 41 Cong.Rec. 2750
(remarks of Senator Nelson),
with id. at 2753 (remarks of
Senator Patterson).
See text,
infra at
399 U. S.
340-341. The reason for the distinction appears to be
the wholly sensible one of not permitting appeals that might
involve overturning the findings of the trier of fact -- whether it
be judge or jury. Nobody suggests in this case that Judge
Wyzanski's findings as to Sisson's sincerity are reviewable; the
only question is whether those findings are legally relevant. While
I can sympathize with the majority's concern to distinguish
Covington, I do not see the relevance of the purported
distinction,
see ante at
399 U. S.
302-303, n. 56. There, as here, the trial judge
explicitly refused to declare the relevant Act unconstitutional on
its face, and necessarily rested his action on factual findings
concerning the particular defendant,
see 282 F. Supp. 886,
889-890. In fact, under the majority's reasoning, it would have
been even easier to argue in
Covington that the facts
needed to prove the constitutional defense were part of the
"general issue," since proof at a trial on the merits would
necessarily have involved developing such things as defendant's
status as a marihuana dealer. The majority suggests that there the
Government conceded the relevant facts, whereas, here, they were
contested. While that suggestion is itself highly dubious,
see THE CHIEF JUSTICE's opinion,
ante at
399 U. S. 312,
until the majority explains how that distinction is at all
relevant, reiterating the distinction again only begs the issue
posed by this case.
See 399
U.S. 267fn3/5|>n. 5,
supra. For whether the issue
was conceded or contested, it remains true under the majority's
analysis that
Covington cannot be distinguished from a
directed acquittal
"entered on the ground that the Government did not present
evidence sufficient to prove that [Covington] was [not faced with a
substantial possibility of incrimination]."
Majority opinion,
ante at
399 U. S.
299.
[
Footnote 3/7]
See majority opinion,
ante at
399 U. S.
306-307, n. 61. Of course, the legislation that the
Government sought shortly after the Act was passed -- requiring a
defendant to raise his defenses before trial -- does not
necessarily mean that the then-Attorney General interpreted
"jeopardy" to mean literal jeopardy. The legislation would have
been equally needed to prevent defendants from waiting until
"constitutional jeopardy" had attached, before securing relief on a
motion in bar. Indeed, it is because it was thought that
"constitutional jeopardy" had attached in the
Beef Trust Case
(United States v. Armour Co.), 142 F. 808 (D.C.N.D.Ill.1906)
that no appeal was thought to lie.
See infra at
399 U. S.
341-342. Since the
Beef Trust Case was the
motivating force behind the Criminal Appeals Act, it would be
natural for the Attorney General to seek legislation that would
force a similar defendant to raise and get a decision on his plea
in bar before trial began, thus avoiding any possibility that the
defendant would escape by being placed in legal jeopardy.
[
Footnote 3/8]
To argue that the statute was enacted for the benefit of the
Department of Justice hardly justifies relying on the Government's
concession as additional authority for the proper interpretation of
the Act. The relationship of the Department of Justice to the
Criminal Appeals Act is not that of an agency to the statute
creating the agency and charging it with enforcement of the Act's
provisions. Indeed, when it comes to the question of this Court's
jurisdiction, no institution has special authority for exploring
and determining that question other than this Court. The Solicitor
General in this case is simply one of the litigants; to give
special weight to his strategy in arguing this case, at the very
least, does a disservice to Sisson, who -- seemingly contrary to
his own interests -- has also made a concession: namely, that this
Court does have jurisdiction under both the "motion in bar" and
"motion in arrest" provisions. The views of the Justice Department
on the "motion in bar" provision are entitled to precisely the same
weight as the majority extends to Sisson's views and to the Justice
Department's views on the "motion in arrest" provision.
[
Footnote 3/9]
This interpretation is reinforced at other points in the debate
in a manner that also explains why the "jeopardy" language occurs
in the "motion in bar" provision, and not in the other provisions.
The Senators thought that indictments would normally be dismissed
before trial began, so there would be no "jeopardy" problems in
allowing appeals in such cases. Similarly, a motion in arrest after
judgment was thought to involve no jeopardy problems because the
defendant made the motion himself, in an attempt to overturn a
verdict of guilty.
See 41 Cong.Rec. 2753. But it was
recognized that the motion in bar could be granted after trial had
started,
see 41 Cong.Rec. 279, and it was not obvious
whether, in such a case, "jeopardy" would have attached in the
constitutional sense to prevent retrial. Hence, the "jeopardy"
language was added, "out of abundance of caution," to make clear
that Congress was simply bringing that provision into line with the
other provisions:
i.e., appeals were to lie only where
"constitutional jeopardy" had not attached; but jeopardy, not the
impaneling of the jury, was to be the test of appealability in the
case of the motion in bar, just as in the case of the motion in
arrest.
See 41 Cong.Rec. 2191 (remarks of Senator Bacon);
41 Cong.Rec. 2756 (remarks of Senator Nelson) ("out of extreme
caution, and, to put it exactly in harmony and in line with the
provisions of the three preceding paragraphs, we have expressly
provided that, where the defendant has been put in jeopardy, he
cannot be reindicted").
[
Footnote 3/10]
The majority's apparent willingness to accept Senator
Patterson's suggestion that the
Beef Trust Case could have
been appealed,
ante at
399 U. S. 304
n. 57, virtually concedes the issue. For the whole point is that,
in distinguishing between the plea and the issue on the merits, the
Senator was plainly giving his views as to what constitutes "legal
jeopardy."
[
Footnote 3/11]
It should be noted that even Senator Rayner's amendment did not
purport to narrow the scope of cases in which the Government could
appeal; it only sought to remove any "double jeopardy" problem by
declaring that the defendant should retain a favorable decision,
whatever the result on appeal.
On the third day of debate, the amendment was agreed to,
modified to 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
.et aside."
41 Cong.Rec. 2819.
Senator Rayner's earlier opponents continued to insist that no
material change had been made by the amendment, since, as they had
argued, there would be no appeal, in any event, where the defendant
had received a "verdict" in his favor,
see opinion of THE
CHIEF JUSTICE,
ante, p.
399 U. S. 308,
as opposed to securing a favorable "judgment" by the trial court's
action in sustaining his plea or arresting judgment.
See
41 Cong.Rec. 2820. Without explanation, the Conference Committee
changed the amendment to read:
"
Provided, That no writ of error shall be taken by or
allowed the United States in any case where there has been a
verdict in favor of the defendant."
Subsequent amendments to the Act omitted the proviso altogether
(which no longer appears in the current version), thus vindicating
the arguments of Senator Rayner's opponent that the amendment had
no substantive effect.