UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
decided: June 12, 1973.
UNITED STATES OF AMERICA, PLAINTIFF-APPELLANT,
ANTHONY ESPOSITO, DEFENDANT-APPELLEE
Swygert, Chief Judge.
SWYGERT, Chief Judge.
Defendant-appellee, Anthony Esposito was charged in a two count indictment with the possession and distribution of 206.5 milligrams of cocaine in violation of 21 U.S.C. § 841. Following a trial before a jury, he was found guilty on both counts. Esposito then moved for a new trial or, in the alternative, for an arrest of judgment on the ground that the Government had failed to prove any connection between the offense charged and interstate commerce. The district court denied the motion for a new trial but granted the motion for arrest of judgment, holding that the "offense of which this defendant stands convicted is not one against the federal government, or one which Congress has power to prohibit in the manner attempted by 21 U.S.C. § 841." The Government appeals.
The threshold question is one of appealability: Under the 1971 amendment to the Criminal Appeals Act, 18 U.S.C. § 3731, can the Government appeal from the district court's order?
Section 3731 provides:
In a criminal case an appeal by the United States shall lie to a court of appeals from a decision, judgment, or order of a district court dismissing an indictment or information as to any one or more counts, except that no appeal shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution.
The government's right to appeal trial orders terminating criminal prosecutions is limited by § 3731 and the double jeopardy clause of the fifth amendment. The jeopardy clause stands as an absolute prohibition against government appeals where jeopardy is found to have attached. Although Congress has no power to expand the government's right to appeal beyond the prohibition of the jeopardy clause, it does have the power to further limit it.*fn1 That being true, the question of appealability in cases such as this is best approached by a two part inquiry. Initially the question is whether jeopardy in fact attached. If it did, the prosecution is at an end and no appeal is available to the Government; if it did not, the second inquiry, involving the interpretation of § 3731 and its application to the specific facts of the case, is required.
For jeopardy purposes the question to be decided is whether the trial court "bottomed" his order "on factual conclusions not found in the indictment" or "on the basis of evidence adduced at trial." United States v. Sisson, 399 U.S. 267, 288, 90 S. Ct. 2117, 2129, 26 L. Ed. 2d 608 (1970). If the court's order "arresting judgment" is based upon evidence produced at trial, it is in the nature of an acquittal and is not appealable under the double jeopardy clause.
A review of the record here shows that the trial judge did not base his order on the evidence adduced at trial. Jeopardy did not, therefore, attach and this appeal is not constitutionally barred. The challenged order was limited to the court's conclusion that unless adequate connection between the conduct sought to be regulated and interstate commerce is alleged and proved, prosecution under the statute is an invalid exercise of federal power.*fn2 The court, in arriving at that conclusion, did not need to, and indeed did not, rely on the evidence produced by either party. The indictment contained a narrative of virtually every fact recited in the order*fn3 and there was neither allegation nor proof of a connection with interstate commerce. Further, it is clear from the order that the court concluded that the fatal defect in the prosecution lay in the indictment's failure to state and the statute's failure to require a nexus with interstate commerce which would justify federal regulation. The fact that the prosecution failed to prove such a connection, though alluded to in the order, was of no significance to the actual basis for the decision. The order was neither based upon nor limited in application to the facts of the case. Appeal, therefore, is not barred by the double jeopardy clause of the fifth amendment.
The defendant also argues that this appeal is barred by the clear and unambiguous language of § 3731. We disagree.
The predecessor of the present Appeals Act, Pub. L. 90-351 (1968), contained express provisions that permitted appeals by the government from various trial court orders which "terminated" prosecutions, including "arrests of judgment." The present section contains no such provision. It is limited to dismissals of indictments. The Government argues that appeals are permissible under the present § 3731 from any order except an acquittal. The language of the statute, its legislative history, and the well established rule of construction that the Criminal Appeals Act is to be strictly construed against the Government, Will v. United States, 389 U.S. 90, 97, 88 S. Ct. 269, 19 L. Ed. 2d 305 (1967), all compel the rejection of that expansive interpretation.*fn4 Nevertheless, the fact that we read § 3731 as permitting appeals only from dismissals of indictments does not resolve the question that is presented here. Although the trial judge labelled his order an "arrest of judgment," it remains for us to determine whether that characterization is correct and, if so, whether an arrest of judgment under the circumstances of this case is equivalent to the dismissal of an indictment. We answer both questions in the affirmative.
The order in question was properly designated an arrest of judgment. As noted above, it was based exclusively upon allegations made in the indictment and was entered because of deficiencies in the charge against the defendant. As such, it was an "arrest of judgment" as that term was recently defined by the Supreme Court in Sisson.
In using that phrase [arrest of judgment] 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 invalid.
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. 399 U.S. at 280-281, 90 S. Ct. at 2125.
Congress, in using the phrase in the former § 3731, defined it in a manner which would encompass the instant order. Senator Nelson of Wisconsin, one of the bill's sponsors, noted that "the arrest of judgment . . . 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.
Not only was the instant order an arrest of judgment, it was tantamount to the dismissal of an indictment. It comes, therefore, within the meaning of "dismissal" as used in § 3731, and is appealable.
Having decided that the Government may prosecute this appeal, we turn to the merits. The district court concluded that Congress had no power to regulate the use and distribution of cocaine without requiring proof in each prosecution of some connection with interstate commerce. We hold that it erred in so doing.
The arguments made by the defendant and accepted by the trial court have previously been rejected by both the Fifth and Sixth Circuits. United States v. Scales, 464 F.2d 371 (6th Cir. 1972); United States v. Lopez, 459 F.2d 949 (5th Cir. 1972). We concur in the reasoning of those cases and reject the conclusion of the district court in this case.
For this reason, the order of the district court is reversed and vacated and the cause is remanded for entry of judgment in accordance with the jury's verdict.