Swygert, Chief Judge, Hastings, Senior Circuit Judge and Kiley, Fairchild, Cummings, Kerner, Pell, Stevens and Sprecher, Circuit Judges. Kiley and Fairchild, Circuit Judges (concurring). Stevens, Circuit Judge, dissenting, with whom Cummings and Sprecher, Circuit Judge, join. Pell, Circuit Judge (dissenting).
United States of America v. Richard Victor Ponto
The defendant, Richard Ponto, 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 the defendant's motion "to dismiss the indictment or for a directed judgment of acquittal." The government appealed.
A three-judge panel of this court, one judge dissenting, ruled that the government did not possess the authority to appeal under 18 U.S.C. § 3731*fn1 and dismissed the case for lack of appellate jurisdiction. United States v. Ponto, 454 F.2d 647 (7th Cir. 1971). Subsequently, the government's petition for a rehearing en banc was granted.*fn2 Upon consideration by the entire court, we affirm the panel's opinion that the government is barred from appeal and dismiss the appeal for lack of jurisdiction.
The facts of the case were adequately stated in the panel's opinion, United States v. Ponto, supra, and we shall avoid unnecessary repetition.
The issue reargued en banc concerned the interpretation of the portion of 18 U.S.C. § 3731,*fn3 which provides:
An appeal may be taken by and on behalf of the United States from the district courts to a court of appeals in all criminal cases in the following instances:
From a decision or judgment setting aside, or dismissing any indictment or information, or any count thereof, except where a direct appeal to the Supreme Court of the United States is provided by this section.
The panel in Ponto held that this portion of § 3731 permits a government appeal to this court only when the dismissal of a criminal case by a district court is based on a defect in the indictment or information, or in the institution of the prosecution. For this holding, the panel relied heavily on an en banc decision of the Ninth Circuit, United States v. Apex Distributing Co., 270 F.2d 747 (9th Cir. 1959). In Apex, the Ninth Circuit, after an exhaustive exposition of the legislative history of § 3731, concluded, as we do here, that paragraph 6 reached some, but not all, orders dismissing indictments.
To understand the meaning of § 3731, a short review of the Act's legislative history is in order. Prior to 1907, the government had no right to appeal from any criminal case. In 1907, Congress permitted appeal by the government to the Supreme Court in certain narrowly defined instances.*fn4 No government appeal was permitted to a court of appeals. 34 Stat. 1246. United States v. Sisson, 399 U.S. 267, 294, 90 S. Ct. 2117, 26 L. Ed. 2d 608 (1970); Carroll v. United States, 354 U.S. 394, 402 n. 11, 77 S. Ct. 1332, 1 L. Ed. 2d 1442 (1957).
In 1942, Congress permitted the government to appeal to the court of appeals "from a decision or judgment quashing, setting aside, or sustaining a demurrer or plea in abatement to any indictment or information, . . . ." Act of May 9, 1942, c. 295, § 1, 56 Stat. 271, codified as former 18 U.S.C. § 682 (1946 ed.). The Report of the Judiciary Committee explained the purpose of this provision:
The 1942 provision, then, permitted government appeal from a decision responsive to a demurrer or plea in abatement to the indictment. Under common law, a demurrer was raised by a criminal defendant to question the legal sufficiency of the indictment. 2 Orfield, Criminal Procedure Under the Federal Rules, §§ 12.9, 12.10, 12.15 (1966 ed.); Clark, Handbook of the Law of Code Pleading, 501-07 (1947). A plea in abatement attacked the indictment for reasons not apparent on the face of the indictment. Orfield at § 12.8. It was ". . . an appropriate means of raising objections to an indictment which may involve serious and prejudicial infringements of procedural rights, such as an objection to the qualifications of grand jurors . . . to the method of selection of the grand jury . . . or its composition. . . ." See United States v. Janitz, 161 F.2d 19, 21 (3d Cir. 1947); United States v. Rintelen, 235 F.787, 788 (D.C., S.D.N.Y.1916). Misnomer of the defendant in the indictment was also grounds for the plea. United States v. Apex Distributing Co., supra, 270 F.2d at 753. The crucial characteristic of pleas in abatement was that they attacked the indictment by proof of extrinsic facts. At any rate, by 1942, demurrers and pleas in abatement encompassed motions attacking an indictment on its face or the institution of the prosecution leading up to the issuance of an indictment. United States v. Janitz, supra.
In 1946, the Federal Rules of Criminal Procedure abolished the use of common law procedures such as a demurrer and plea in abatement and substituted in their place the motion to dismiss the indictment under Rule 12, Fed.R.Crim.P. At the same time, the Advisory Committee on the Rules explained that the government's right to appeal should not be affected by the change in terminology. Notes of Advisory Committee on Rules, Note to Rule 54(c), 18 U.S.C. p. 506. Rule 54(c) was enacted to provide that common law pleading terms, including demurrer and plea in abatement, which appear in Acts of Congress "shall be construed to mean the motion raising a defense or objection provided in Rule 12." Rule 54(c), Fed.R.Crim.P.
In 1948, Congress amended § 3731 and for demurrers and pleas in abatement as a basis for government appeal to the court of appeals, substituted the words "decision or judgment setting aside, or dismissing any indictment or information." 18 U.S.C. § 3731, para. 6. The change in wording was made to conform the terminology of the Act with the 1946 modernization in the Federal Rules of Criminal Procedure. No enlargement of the government's right to appeal was intended. United States v. Sisson, supra, 399 U.S. at 292-293, n. 22, 90 S. Ct. 2117; United States v. Pack, 247 F.2d 168 (3d Cir. 1957). Thus, the government, under the 1948 legislation, could appeal under para. 6 from dismissals of indictments under Rule 12 which would have been cognizable in legal basis as orders responsive to demurrers or pleas in abatement at common law. And, as indicated earlier, these common law pleas were limited to objections to the wording in the indictment or to the proceedings culminating in the issuance of the indictment.
The Ninth Circuit reached this very same conclusion in Apex, when it held that the government could appeal from an order dismissing the case because of a defect in the indictment or institution of the prosecution. United States v. Apex Distributing Co., supra, 270 F.2d at 755. The Third Circuit relied on the same principle in United States v. Pack, supra, as did the First Circuit in United States v. Nardolillo, 252 F.2d 755 (1st Cir. 1958), and United States v. Findley, 439 F.2d 970 (1st Cir. 1971). Apex was cited with approval in Mann v. United States, 113 U.S. App. D.C. 27, 304 F.2d 394, 395, n. 1 (1962). The Supreme Court has given implicit recognition to this interpretation of § 3731. In Sisson, the Court, citing Apex, noted that no substantive changes in the 1942 Act were intended in the 1948 amendments, United States v. Sisson, supra, 399 U.S. at 292-293, n. 22, 90 S. Ct. 2117. The Court stated, in analyzing appealability in United States v. Fruehauf, 365 U.S. 146, 157, 81 S. Ct. 547, 554, 5 L. Ed. 2d 476 (1961): "Nor does the record raise questions concerning the sufficiency of the indictment which would require, in an appropriate case, that the case be sent to the Court of Appeals, pursuant to 18 U.S.C. § 3731." Apex was also cited in Will v. United States, 389 U.S. 90, 97, n. 5, 88 S. Ct. 269, 19 L. Ed. 2d 305 (1967).*fn5
We are thus convinced that the rule in Apex is a sound interpretation of para. 6 of § 3731.
The government contends that this court should interpret para. 6 according to the plain meaning of the words in the provision. See Judge Pope's concurring opinion in Apex, 270 F.2d at 759-762. Resort to legislative history and intent, it is argued, is proper only when the wording of a statute is ambiguous on its face and when that analysis will remove the ambiguity.
This doctrine of statutory interpretation has been rejected by the Supreme Court, however, in a case involving construction of § 3731:
It is axiomatic, as a matter of history as well as doctrine, that the existence of appellate jurisdiction in a specific federal court over a given type of case is dependent upon authority expressly conferred by statute. And since the jurisdictional statute prevailing at any given time are so much a product of the whole history of both growth and limitation of federal-court jurisdiction since the First Judiciary Act, 1 Stat. 73, they have always been interpreted in light of that history and of the axiom that clear statutory mandate must exist to found jurisdiction. Carroll v. United States, 354 U.S. 394, 399, 77 S. Ct. 1332, 1336, 1 L. Ed. 2d 1442 (1957).
Appealability under § 3731 is dependent upon an appellate court's characterization in common law pleading terms of the legal basis of the district court's ruling. The Supreme Court, in analyzing another part of § 3731, which allows appeal from a decision "arresting a judgment of conviction," explained that:
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 welldefined and limited meaning. United States v. Sisson, supra, 399 U.S. at 280, 90 S. Ct. at 2125.
The Court then reviewed the development of the statutory phrase under consideration from its common-law usage through its inclusion by Congress in § 3731. This same approach was also utilized by the Supreme Court in two other recent § 3731 cases, United States v. Weller, 401 U.S. 254, 91 S. Ct. 602, 28 L. Ed. 2d 26 (1971), and United States v. Jorn, 400 U.S. 470, 91 S. Ct. 547, 27 L. Ed. 2d 543 (1971). Such has been the analysis in most cases dealing with § 3731. See, for example, Judge Learned Hand's discussion in United States v. Zisblatt, 172 F.2d 740, 742 (2d Cir. 1949) ("The Criminal Appeals Act spoke to the law, as it then was.").*fn6
Another interpretation of para. 6 urged upon us and mentioned by Judge Stevens in his dissent to the panel's opinion in Ponto, supra, 454 F.2d 647 at 655, is that we should examine the effect of a dismissal order rather than the reasons for its entry. This view finds support in one portion of the 1942 Committee Report, supra,
The bill would . . . permit appeals to the circuit court of appeals from all decisions and judgments having the effect of quashing, setting aside, or sustaining demurrers or pleas in abatement to indictments or informations. . . .
It is claimed that Congress intended, by this statement, to allow the government to appeal from all pre-trial dismissal orders in which the end result -- the actual "effect" of the ruling -- is the dismissal of the indictment. Such an interpretation would include virtually all dismissals prior to trial since most pre-trial orders dismissing the action do so by dismissing the indictment under Rule 12 of the Federal Rules of Criminal Procedure. United States v. Heath, 260 F.2d 623, 628 (9th Cir. 1958); United States v. Apex Distributing Co., supra, ...