Swygert, Chief Judge, and Kiley, Fairchild, Cummings, Kerner, Pell and Sprecher, Circuit Judges. Kiley and Fairchild, Circuit Judges (concurring). Cummings and Sprecher, Pell, Circuit Judges (dissenting).
The defendant, Dennis Michael Gustavson, was indicted for refusing to submit to induction into the Armed Forces. 50 U.S.C.App. § 462. Prior to trial, the district court granted defense counsel's motion to dismiss the indictment. The government appeals. We dismiss for lack of appellate jurisdiction.*fn1
The defendant had been classified 2-S until April, 1968. In the following month, he requested a I-O classification from his local board and subsequently filed SSS Form 150 with it. After a personal appearance in October, the board decided not to reclassify Gustavson I-O because it believed that he was not ". . . a true conscientious objector through religious training and background." His subsequent appeal to the State Board was denied.
On February 14, 1969, Gustavson received an order to report for induction. On March 10, 1969, he reported to the induction station, but refused to submit. He was subsequently indicted.
Prior to trial, defense counsel submitted a motion to dismiss the indictment. That motion was predicated in part on the ground that it was prejudicial for the board to have considered certain information in Gustavson's file without informing him of its consideration at the personal appearance. At Gustavson's physical examination, he wrote in a form entitled "Statement of Law Violations" (U.S.AREC Form 191-R), that he was arrested for assault in 1961. The local board, at the subsequent personal appearance, apparently relied on this information in concluding that Gustavson was not a "true conscientious objector."
Two hearings were held for argument on defendant's motion to dismiss the indictment.*fn2 Counsel's arguments concerned the prejudicial nature of the board's reliance on the 1961 assault charge at the personal appearance. Defense counsel stated the issue: ". . . was the proceeding fair, did Mr. Gustavson have a chance to know what the board was doing. . . ." The district judge granted the defendant's motion and dismissed the case because he believed that Gustavson should have been informed of the board's consideration of the assault charge and thus did not receive a fair hearing before the board.
The government contends that this court has jurisdiction to entertain this appeal under para. 6 of the Criminal Appeals Act, 18 U.S.C. § 3731.*fn3 In United States v. Ponto and Grochowski (Nos. 18396, 18874), 454 F.2d 657 (7th Cir.1971), this court, sitting en banc, held that appeal by the government under para. 6 is permitted only from a dismissal based on a defect in the indictment or in the institution of the prosecution. In the case at bar, the dismissal was not based on these deficiencies, but rather on the fairness of the procedures employed by the local board. Thus, the government may not appeal to this court under § 3731.
We also find that the double jeopardy clause of the Fifth Amendment prohibits the government from appealing. The judge's dismissal order was, in fact, a ruling on the merits of a defense which could have been raised at trial.*fn4 This constitutes an acquittal from which no government appeal is permitted. rehearing en banc (Nos. 18396, 18874), United States v. Ponto and Grochowski, 454 F.2d 657 (7th Cir. 1971).
KILEY and FAIRCHILD, Circuit Judges (concurring).
We concur, with the comment noted in our concurrence in United States of America v. Ponto, and United States of America v. Grochowski, (Nos. 18396, 18874) 454 F.2d 657 (7th Cir. 1971).
CUMMINGS and SPRECHER, PELL, Circuit Judges (dissenting).
For the reasons expressed in Judge Stevens' scholarly dissent in United States v. Ponto, No. 18396, and United States v. Grochowski, No. 18874, we conclude that the district judge's order dismissing the indictment was reviewable here under 18 U.S.C. § 3731. As in Ponto and Grochowski, Gustavson's trial never began. There had been no waiver of a jury, and no jurors had been impanelled. Defendant's motion to dismiss the indictment pursuant to Rule 12 of the Federal Rules of Criminal Procedure was understood by all parties to be a pre-trial ...