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United States v. Ponto


issued: December 28, 1971.


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).

Author: Kerner

KERNER, Circuit Judge.


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, 270 F.2d at 751 ("The dismissal of a criminal action inescapably sets aside or dismisses the indictment or information on which it is based.").

We do not believe such a broad reading was intended by Congress. The 1942 Report, as quoted supra, states that the enactment would limit the right of appeal to dismissal orders "involving the sufficiency of the allegations in the indictment or information" when raised by demurrer or plea in abatement. The extraction of the phrase, "having an effect," from the 1942 Committee Report does not necessitate a contrary conclusion.*fn7 Further, such a broad reading of the words in § 3731 would violate the long standing principle that the Act should be strictly construed against the government's right to appeal. United States v. Sisson, supra, 399 U.S. at 270, 286, 291, 90 S. Ct. 2117; Carroll v. United States, supra, 354 U.S. at 394, 400, 406; United States v. Borden Co., 308 U.S. 188, 192, 60 S. Ct. 182, 84 L. Ed. 181 (1939). In addition, we rely on the Supreme Court's statement with respect to § 3731: "While it is always necessary to categorize a situation realistically, to place a given order according to its real effect, it remains true that the categories themselves were defined by the Congress in terms of form." Carroll v. United States, supra, 354 U.S. at 406, 77 S. Ct. at 1339. Thus, ". . . in a limited sense, form is substance with respect to ascertaining the existence of appellate jurisdiction." Id. As in Apex, we must examine the legal basis of the dismissal order rather than its end result to determine whether it is included within the restricted definitions in § 3731.

Applying the standard of appealability we have enunciated to the facts in this case, we find that the dismissal order was not based on a defect in the wording of the indictment or in the institution of the prosecution. There was no contention below that the indictment was fatally insufficient or that the proceedings culminating in the issuance of the indictment were faulty in any way. Rather, the judge seemed to be disturbed about the draft board's procedures in classifying Ponto I-A. His comments prior to his ruling on the motion to dismiss focused on these considerations. The alternatively titled motion to dismiss the action dealt with Ponto's classification and the actions of the draft board, and was not an attack against the indictment itself.


An objection to the local board's classification of a registrant can be raised as a defense to a prosecution under 50 U.S.C. App. § 462. The Selective Service Act, 50 U.S.C. App. § 460(b) (3), provides that all questions relating to judicial review of the classification and processing by a board be reviewed in this manner. The motion in the instant case presented questions concerning Ponto's classification, which are raised only by defense. The decision to dismiss by the district judge was based on questions presented by this defense. As such, it was a ruling on the merits of the defense.

The panel in Ponto decided that the order was in the nature of an acquittal, i. e., a ruling on the merits by which the defendant was discharged from prosecution. See Pratt v. United States, 70 App.D.C. 7, 102 F.2d 275, 279 (1939). Upon reconsideration, we conclude that the ruling below was, in fact, an acquittal, and for this reason, appeal by the government is prohibited by the double jeopardy clause of the Fifth Amendment.

The defense raised by the motion below could have been decided at trial. See United States v. Ramos, 413 F.2d 743, 744, n. 1 (1st Cir. 1969). Yet, a defense on the merits can likewise be decided prior to trial, as it was here. Rule 12(b) (1) of the Federal Rules of Criminal Procedure allows a party to present prior to trial a motion to dismiss on a defense "which is capable of determination without trial of the general issue. . . ." See United States v. Covington, 395 U.S. 57, 60, 89 S. Ct. 1559, 23 L. Ed. 2d 94 (1969); United States v. Fargas, 267 F. Supp. 452, 455 (S.D.N.Y. 1967). We believe that the motion ruled upon by the court below fits into this category. The validity of a classification involves questions of law for the judge, as in any judicial review of administrative decision-making. United States v. Ramos, supra, 413 F.2d at 744-745, n. 1; Martinetto v. United States, 391 F.2d 346, 347 (9th Cir. 1968). The jury is to determine whether, in fact, the defendant refused to submit to induction. Questions involving the validity of the defendant's classification do not come before it. For this reason, in many cases, a ruling on the merits of a defense of improper classification could be made by the judge prior to trial when ". . . trial of the facts surrounding the commission of the alleged offense would be of no assistance in determining the validity of the defense." United States v. Covington, supra, 395 U.S. at 60, 89 S. Ct. at 1561. We find that the pre-trial motion presented to the judge in this case was of such a character.

Since the dismissal order was based on a determination on the merits, it was an acquittal to which jeopardy attached.*fn8 United States v. Sisson, supra, 399 U.S. at 289-290, 90 S. Ct. 2117; United States v. Ball, 163 U.S. 662, 16 S. Ct. 1192, 41 L. Ed. 300 (1896); Green v. United States, 355 U.S. 184, 78 S. Ct. 221, 2 L. Ed. 2d 199 (1957); Helvering v. Mitchell, 303 U.S. 391, 398, 58 S. Ct. 630, 82 L. Ed. 917 (1938). See United States v. Jorn, 400 U.S. 470, 479, 91 S. Ct. 547, 27 L. Ed. 2d 543 (1971). Thus, government appeal from this ruling would violate the double jeopardy clause of the Fifth Amendment since a retrial on the charge would be prohibited. Kepner v. United States, 195 U.S. 100, 24 S. Ct. 797, 49 L. Ed. 114 (1904); United States v. Ball, supra. We view this as an independent ground for holding that the government may not appeal in this case.*fn9

For the reasons we have stated, we dismiss this appeal for lack of jurisdiction.*fn10


United States of America v. Raymond J. Grochowski

The defendant, Raymond J. Grochowski, was indicted for refusing to submit to induction into the Armed Forces, 50 U.S.C. App. § 462. Prior to trial, the district court dismissed the indictment because the defendant, claiming to be a conscientious objector, had not presented his conscientious objector (I-O) claim to his local draft board. In dismissing the action, the judge remanded the case to the board to give the defendant an opportunity to present his I-O claim. The government appealed this dismissal order.

A three-judge panel of this court ruled that the government was barred under 18 U.S.C. § 3731 from appealing the dismissal order to this court or the United States Supreme Court.*fn11 United States v. Grochowski, 454 F.2d 655 (7th Cir. 1971). Subequently, the government's petition for rehearing en banc was granted. Upon consideration by the entire court, we affirm the panel's opinion that the government is barred from appeal, and dismiss for lack of jurisdiction.


The dismissal order was not based on any defect in the indictment or institution of the prosecution. The judge's order addressed itself to the classification of the defendant and was intended to allow the defendant to raise his I-O claim before his local board. These matters are raised by defense and not by objections to the sufficiency of the indictment or institution of the prosecution. Consequently, the government may not appeal under § 3731.


We also believe that the order below was an acquittal and thus appeal is prohibited by the double jeopardy clause of the Fifth Amendment. The ruling that the defendant did not present a written request for an I-O reclassification addressed itself, however erroneously, to the classification process. As such, it was a decision on the merits of a defense which could have been raised at trial, but which was capable of determination prior to trial under Rule 12(b) (1) of the Federal Rules of Criminal Procedure. Jeopardy attached to the ruling, and the government is thus prohibited from an appeal.

The decision of the three-judge panel is affirmed. This appeal is dismissed for lack of jurisdiction.

Appeals dismissed. Nos. 18396, 18874

KILEY and FAIRCHILD, Circuit Judges (concurring).

We concur in Judge Kerner's opinion. With respect to Part II [in both Ponto and Grochowski ] it is our analysis that the order of the district court appealed from was a dismissal with prejudice and had the effect of barring a second prosecution. White v. United States, 126 U.S.App.D.C. 309, 377 F.2d 948 (1967); see United States v. Oppenheimer, 242 U.S. 85, 87, 37 S. Ct. 68, 61 L. Ed. 161 (1916). Nos. 18396, 18874

STEVENS, Circuit Judge, dissenting, with whom CUMMINGS and SPRECHER, Circuit Judges, join.

The indictments of Grochowski and Ponto were dismissed in advance of trial. In each case the trial judge was apparently persuaded that there was a defect in the defendant's classification by the Selective Service Board. In Grochowski's case, as a result of the Supreme Court's later decision in Ehlert v. United States, 402 U.S. 99, 91 S. Ct. 1319, 28 L. Ed. 2d 625, it is plain that the district court erred. In Ponto's case, it is equally plain that the indictment was valid on its face.*fn1

These cases happen to involve alleged violations of the Selective Service law. The problem they identify, however, cuts across the whole spectrum of criminal justice, from cases like the ill-fated Sherman Act prosecution of the "Beef Trust,"*fn2 which led to the original enactment of the Criminal Appeals Act in 1907,*fn3 to more familiar forms of federal crime. At issue is the scope of a district judge's absolute power to decide, for whatever reason may appeal to his fancy, that a defendant may not be required to stand trial. More narrowly, the question is whether 18 U.S.C. § 3731 authorizes a court of appeals to review a district court order dismissing an indictment in advance of trial if the trial judge has erroneously concluded, on the basis of matter not disclosed in the indictment itself, that the defendant is not guilty.

There are two quite different theories which might support a holding that we have no jurisdiction of these appeals. The majority has adopted both. On the one hand, the court's opinion holds that Ponto and Grochwski were really acquitted even though the district judges merely purported to dismiss their respective indictments. On the other hand, the opinion also holds that even though the orders were dismissals rather than acquittals, they are not appealable because the statute does not mean what it says.

Under the first theory the objection to our appellate jurisdiction is constitutional and there is no need to analyze the statutory language or the niceties of the common law which interested the Ninth Circuit in Apex.*fn4 If the double jeopardy clause applies, defendants may not be reindicted, and the Government may not appeal. United States v. Ball, 163 U.S. 662, 671, 16 S. Ct. 1192, 41 L. Ed. 300; United States v. Sisson, 399 U.S. 267, 289-290, 90 S. Ct. 2117, 26 L. Ed. 2d 608. Under this approach, the cases take on exceptional importance because the holding will also determine appealability of comparable orders under the Omnibus Crime Control Act of 1970,*fn5 which amended 18 U.S.C. § 3731.

Under the second theory, the objection to our appellate jurisdiction rests on an esoteric exception to plainly written statutory language. The existence and scope of the exception are thought to be based on common law distinctions which the statute was amended to eliminate. To discover the exception, the Ninth Circuit made a microscopic analysis of language which had been eliminated from the statute in 1948 without noticing that language which was retained by Congress provided a sufficient basis for appellate review of a pretrial order "setting aside" an indictment. As Mr. Justice Holmes recognized in 1913,*fn6 a simple reading of those words will avoid the niceties of an argument predicated on other language in the Act. The exception discovered by the Ninth Circuit is so esoteric that it was unknown to any of the litigants in these cases when their original briefs were filed,*fn7 to any member of the Supreme Court when Weller was remanded to the Ninth Circuit,*fn8 or to any member of Congress when § 3731 was amended in 1948.

The majority opinion rests on both the constitutional and statutory theories.It is, therefore, appropriate to explain why neither is tenable.


Whether the problem is analyzed in constitutional terms, as a matter of interpreting applicable procedural rules, or solely by considering what the district judges did in these cases, it is perfectly clear that the challenged orders were not acquittals.

The Fifth Amendment provides that no person shall be subject for the same offense "to be twice put in jeopardy." Quite obviously the prohibition is inapplicable until a defendant has been put in jeopardy at least once.*fn9 It has long been settled that the mere return of an indictment, the entry of a not guilty plea, or the conduct of a preliminary examination does not place a defendant in jeopardy. Bassing v. Cady, 208 U.S. 386, 391-392, 28 S. Ct. 392, 52 L. Ed. 540; Collins v. Loisel, 262 U.S. 426, 429-430, 43 S. Ct. 618, 67 L. Ed. 1062. "Jeopardy attaches" when the trial commences. United States v. Jorn, 400 U.S. 470, 480, 91 S. Ct. 547, 27 L. Ed. 2d 543.*fn10

In these cases the trials never started. There had been no waiver of a jury by either Ponto*fn11 or Grochowski, and no jury had been impanelled. In both cases the defendants' motions were supported by their Selective Service files, and during the hearing on Grochowski's motion, he took the stand to explain why he had not claimed conscientious objector status before his draft board. However, neither the judge nor the parties treated the preliminary proceedings as a part of the trial itself. At most it could be said that each defendant supported his motion to dismiss with factual matter which the judge regarded as a valid defense to the charge. In my opinion, since the defendants had not been placed in jeopardy, they are not entitled to the constitutional protection which flows from a judgment of acquittal.

The Federal Rules of Criminal Procedure do not contemplate the entry of a judgment of acquittal until "after the evidence on either side is closed." Rule 29, Fed.R.Crim.P. The fact that an order may be given the wrong name does not prevent it from operating as an acquittal provided that it is predicated "upon evidence adduced at the trial." United States v. Sisson, 399 U.S. 267, 290, 90 S. Ct. 2117, 2129, 26 L. Ed. 2d 608.*fn12 In the federal system there is no rule of criminal procedure authorizing the entry of a pretrial judgment of acquittal.*fn13

Finally, it should be noted that although the prayer of Ponto's motion was "for a dismissal of the indictment or, in the alternative, for a directed judgment of acquittal," the trial judge stated unequivocally that he was granting the motion to dismiss.*fn14 Grochowski moved to dismiss and remand to the local board. The trial judge ordered "that the indictment be dismissed and the case remanded to the defendant's local draft board for consideration of his conscientious objector claims."

In my opinion neither of the challenged orders was an acquittal; each was a decision or judgment setting aside or dismissing an indictment.


The applicable statute, 18 U.S.C. § 3731, authorizes appeals on behalf of the United States in "all criminal cases" from "a decision or judgment setting aside, or dismissing any indictment or information, or any count thereof." If an order is covered by this language it is appealable either to the Supreme Court*fn15 or to a court of appeals.*fn16 The appeal goes to the Supreme Court if the decision is based upon the validity or construction of the statute upon which the indictment is founded; otherwise it goes to a court of appeals.

The statute also authorizes an appeal from an order sustaining a motion in bar or a motion arresting a judgment of conviction. Thus, except for acquittals, the statute purports to provide for an appeal by the Government from every kind of adverse final order described in the Federal Rules of Criminal Procedure. The orders before us definitely did not arrest judgments of conviction, and I think it is equally clear that they are not acquittals. Although the point is not free of difficulty, I also am persuaded that they did not sustain motions in bar.*fn17 Accordingly, I am left with the question whether the orders come within the category of decisions or judgments "setting aside or dismissing any indictment."

There can hardly be any doubt that the plain language of the statute describes these orders. I believe all of the opinions in Apex, and also the majority here, would accept that proposition.*fn18 For reasons eloquently stated by Judge Pope in his separate opinion in Apex,*fn19 that really should be the end of the matter. Nevertheless, to avoid the risk that there is a hidden category of exceptions which the legislature inadvertently failed to identify, it may be appropriate to review the statute's history.

Clear legislative history may modify a somewhat ambiguous statute; I doubt if ambiguous history should ever prevail over a clear statute. But when legislative history merely confirms the unambiguous meaning of the statutory language itself, certainly judicial concern with a policy disfavoring appeals by the Government should give way to the mandate of Congress.

There are three chapters in the history of the Criminal Appeals Act. Appeals by the Government in criminal cases were first authorized in 1907, but only to the Supreme Court and only from certain decisions.*fn20 In 1942 the scope of the Government's right to appeal was broadened and review by a court of appeals was first authorized.*fn21 In 1948, in order to conform the statutory language to that used in the Rules of Criminal Procedure which had been adopted two years earlier, Congress replaced terms such as "demurrer," "motion to quash," and "plea in abatement" with phrases like "motion to dismiss." The relevant parts of the three chapters can be briefly identified.

With respect to the 1948 enactment, two points are perfectly clear. First, following the lead taken by the judiciary when the Rules of Criminal Procedure were adopted in 1946, Congress sought to eliminate the use of ancient common law terms.*fn22 Second, the draftsmen of the legislation obviously thought that the 1942 Act already authorized appeals by the Government in all cases described by the new statutory language.*fn23

In my opinion they correctly interpreted the 1942 Act, but even if we assume that they were unaware of certain obscure exceptions to the 1942 law, such ignorance would be irrelevant to an appraisal of their actual intent in 1948. Language which is as plain as "a decision or judgment setting aside or dismissing any indictment or information, or any count thereof" can hardly have been misunderstood by Congress, regardless of whether its understanding of the 1942 Act was perfect or imperfect.

The history of the 1942 Act is sparse, but again certain propositions are perfectly clear. The new Act substantially broadened the Government's right to appeal. Prior to 1942 orders dismissing indictments had been appealable only to the Supreme Court and, except those which sustained special pleas in bar,*fn24 were not appealable at all unless based on a question of statutory construction or constitutionality.*fn25 In the 1942 Act, this requirement was preserved as a condition to direct appeal to the Supreme Court, but was completely eliminated as a condition to appellate review. This change obviously multiplied the instances in which the Government might appeal.

Moreover, the description of the kinds of orders which were to be appealable was enlarged to include specific reference to informations as well as indictments, and to pleas in abatement as well as demurrers, motions to quash, and orders "setting aside" indictments.*fn26 Since special pleas in bar were covered in a separate paragraph, the full list of appealable orders described in the 1942 Act could reasonably be interpreted as covering every kind of pretrial dismissal of an indictment then known to the law.

This interpretation is confirmed by the statement in the House Committee Report that the statute would enlarge the power of the United States to appeal from all decisions and judgments " having the effect of quashing, setting aside, or sustaining demurrers or pleas in abatement to indictments or informations and from all decisions arresting judgments of conviction."*fn27 (Emphasis supplied.)

It is true that the Committee Report identified the policy considerations disfavoring appeals by the Government. It is more significant to recognize, however, that not only the Committee, but also a unanimous Congress,*fn28 decided that these considerations were outweighed by the desirability of broadening the Government's right to appeal. The benefits to the public at large of uniform and evenhanded interpretation of criminal statutes were clearly recognized when the statute was originally debated in 1907,*fn29 and though not expressly reiterated in 1942, must have motivated the important action which Congress then took.

It is also true that in explaining the desirability of enactment, the Committee pointed out that cases involving the sufficiency of the allegations in an indictment should be reviewable.*fn30 No court, however,-- not even the Ninth Circuit -- has interpreted the 1942 Act as limited to such cases.*fn31 Such a narrow reading could not possibly be reconciled with the fact that the appealability of orders sustaining pleas in abatement was first authorized in 1942, because the common law plea in abatement did not test the sufficiency of the indictment. See United States v. Brodson, 234 F.2d 97, 99 (7th Cir. 1956). See also, e. g., 3 Foster, Federal Practice § 517 (6th ed. 1921).

In short, the history of the 1942 Act does not support a reading of the statute which is any narrower than its actual language. On the contrary, if appropriate significance is attached to the legislative decision to broaden the Government's right to appeal notwithstanding the countervailing policy considerations, it is fair to infer that the expressed desire to authorize appeals from all decisions and judgments "having the effect of" granting pretrial relief to a defendant in any of the enumerated categories was intended to be as broad as the plain language which was substituted in 1948.

Reference to the 1907 Act is appropriate to demonstrate that the statute has never contained an esoteric admonition to adhere to common law technicalities rather than the language of the statute itself. Since its original enactment, the relevant portion of the Criminal Appeals Act has consistently covered orders "setting aside" indictments. If there ever was a common law motion or plea to "set aside" an indictment, I have been unable to find any literature describing it.*fn32 It is, therefore, reasonable to infer that inclusion of orders "setting aside" indictments in the 1907 Act was specifically intended to minimize the necessity for analyzing the niceties of the common law in determining the scope of appellate jurisdiction authorized by the statute.*fn33

I recognize, of course, that certain provisions of the statute derive meaning from their common law antecedents. For reasons not applicable in these cases, the Supreme Court has looked to the common law for explanation of the special plea in bar and arrest of judgment paragraphs which provide that Court with direct appellate jurisdiction. Each of these provisions, unlike the broad language in the second and sixth paragraphs of the present Act, or the apparently all-inclusive list in the corresponding portions of the 1942 Act, obviously refers to a specific common law antecedent. Moreover, it is appropriate to contrast a broad right of appeal to any one of eleven circuits with a narrowly restricted right of direct appeal to the Supreme Court. The Supreme Court's analysis of its own mandatory jurisdiction in the motion in bar cases is not necessarily relevant to a proper construction of terms such as "setting aside" in the statutory definition of our jurisdiction. For that reason, as well as the importance of honoring the constitutional benefits which flow from an acquittal of a defendant who has been placed in jeopardy, I do not believe that the common law analysis of arrests of judgment in Mr. Justice Harlan's opinion in Sisson bears on the problem presented by these appeals.

I recognize, as does the majority, that Mr. Justice Harlan cited Apex in a footnote to his opinion in Sisson.*fn34 But he also cited Judge Duffy's opinion for this court in Brodson,*fn35 which plainly holds that the Government has a broader right to appeal than Apex*fn36 in the Sisson opinion can be interpreted as an awareness of the question involved here, the Supreme Court's disposition of Weller shortly thereafter takes on added significance.*fn37

In Weller, as here, the district court dismissed an indictment on the basis of facts not disclosed in the indictment itself. Like Ponto and Grochowski, Weller was indicted for refusing to submit to induction. In the Selective Service proceeding he had requested that his lawyer be allowed to accompany him in an appearance before his local board. Relying on a 1940 regulation,*fn38 the board denied his request. These facts were brought to the attention of the district court in support of Weller's motion to dismiss the indictment. The motion to dismiss was granted on the ground that the regulation was invalid.*fn39

The Government filed a notice of appeal to the Supreme Court, but before argument the Solicitor General asked that Court to remand the case to the Ninth Circuit. The appellee opposed the remand, contending that jurisdiction did lie in the Supreme Court. As the Court noted, the appellee urged that the Supreme Court had "jurisdiction under either of two sections of the Act, one relating to dismissal of an indictment based on the construction of the statute on which the indictment is founded and the other to motions in bar." 401 U.S. at 257-258, 91 S. Ct. at 605.

The first of the two sections is relevant here because it is identical to the paragraph which grants us jurisdiction to review the dismissal of an indictment except for the additional requirement that a statutory construction question must be presented.*fn40 The Supreme Court held that the attack on the regulation did not raise such a question, but there would have been no need to discuss that point if the Court had not assumed that the dismissal was "a decision or judgment setting aside, or dismissing" an indictment within the meaning of § 3731.

The disposition which the Court made of the case was necessarily a holding that the Court was of the opinion that the district court order was appealable. For the Supreme Court did not dismiss the appeal (which would have been the only proper action to take if the district court order was something other than a dismissal covered by § 3731); it remanded the case to the Ninth Circuit for further proceedings in that court. See 401 U.S. at 261, 91 S. Ct. 602. The Supreme Court's statutory authority to take that action is predicated on its opinion that the appeal should have been taken to the court of appeals originally.*fn41

Perhaps, as has been respectfully suggested, that busy Court did not know what it was doing.*fn42 In view of the indepth analysis of the Criminal Appeals Act which other recent cases have required,*fn43 such a suggestion is implausible. Nor is it likely, or indeed consistent with the statutory directive, that the Court was merely remanding the case for the purpose of having the Ninth Circuit consider the issue argued here. If that had been the Court's purpose, surely it would have said so. Since no member of the Court even questioned the appealability of the dismissal, it is more reasonable to believe that the Court reads the plain language of the second*fn44 and sixth*fn45 paragraphs of § 3731 as simply meaning what they say.

The contention that a dismissal is not within § 3731 if the trial court relies on matter which is not identified in the indictment and which relates to the general issue is also foreclosed by United States v. Fruehauf, 365 U.S. 146, 81 S. Ct. 547, 5 L. Ed. 2d 476. In that case the district judge had dismissed an indictment on the basis of factual matter contained in memoranda filed by the parties which he interpreted as a "judicial admission" by the Government. A direct appeal was taken to the Supreme Court because the Solicitor General contended that a question of statutory construction was presented. That Court "set aside" the ruling dismissing the indictment and remanded the case for trial on the valid indictment. See 365 U.S. at 159, 81 S. Ct. 547.

Although the Court declined to consider the merits of the appeal, its disposition of the case necessarily was predicated on a holding that it had the power to entertain the appeal, a power which would not have existed if the district court's order of dismissal had not been a "decision or judgment setting aside, or dismissing" an indictment within the meaning of § 3731.*fn46 The author of the Fruehauf opinion was perhaps the busiest Justice the Court has ever had; it is nevertheless unlikely that the Criminal Appeals Act has any hidden meaning of which he was unaware. The opinion was written by Mr. Justice Frankfurter.


A concluding comment on the practicalities of the situation may be appropriate. The First Circuit in Findley suggested that defendants should be encouraged to seek pretrial rulings on critical issues by assuring them that the rulings will not be appealable.*fn47 As a practical matter, the suggestion relates primarily to defenses which would not withstand scrutiny on appeal, or at least those which counsel considers so dubious that he would rather subject his client to the ordeal of a criminal trial than take the risk that he could not retain the benefit of an erroneous dismissal. I doubt if lawyers need a guarantee against reversal on appeal as an inducement to seek a pretrial test of the validity of a novel or dubious defense. Assuming, however, that they do, is it more desirable to protect erroneous dismissals of indictments from review than to administer justice with as even a hand as possible?

The Criminal Appeals Act was passed for a twofold purpose; first, to avoid the danger that an erroneous nonreviewable decision might set a nationwide precedent,*fn48 and, second, to provide a procedure which would result in more equal treatment for defendants tried before different judges.*fn49 To the extent that jeopardy attaches, erroneous acquittals may frustrate those objectives. Nevertheless, the policy of both the Selective Service*fn50 and the Criminal Appeals Act would dictate that as far as possible all of the many registrants in the Ehlert category, for example, be treated uniformly. The principle of equal treatment under the law should prevail over a dubious policy of encouraging erroneous dismissals by equating them to acquittals.

I respectfully dissent.

I also join in the dissent. For the reasons ably expressed by Judge Stevens, I cannot agree that jeopardy has attached.

With regard to the principal issue which was before us, the construction of the fifth and sixth paragraphs of 18 U.S.C. § 3731, we are all familiar with the abolitionary steps taken in our American procedural jurisprudence, both at the state and federal levels, directed at the ancient writs and formalistic procedures of our common law. The burial of these anachronistic devices, now almost a fait accompli, which may have had some passing pecuniary benefits to the skillful advocate but probably very little long range worth to the litigant who desired to have his case heard expeditiously and on the merits, is generally believed to be a desirable result. The result reached by the Apex court and by the majority of this court seems to me to be an unfortunate retrogressive step.

At the risk of oversimplifying the principal issue before us, one on which my brothers have discoursed learnedly and lengthily, I would stand on the basis that when Congress said that 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 . . . [including] from a decision or judgment setting aside or dismissing any indictment . . .," it meant what it plainly said.

To chart a course on the uncertain sea of legislative history seems to me to be risking the ordinarily attendant possibility of foundering on the shoals of obfuscation.

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