Petitioners were arrested in February 1954 on John Doe warrants and subsequently were indicted in the United States District Court for the District of Columbia, with two others, for violations of the local lottery laws and for conspiracy to carry on a lottery.
The Government contends, most broadly, that the suppression order of any District Court is "final" and sufficiently separable and collateral to the criminal case to be appealable under the general authority of 28 U. S. C. § 1291, notwithstanding that such an order is not listed
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 statutes 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 the light of that history and of the axiom that clear statutory mandate must exist to found jurisdiction. It suffices to cite as authority for these principles some of the cases in which they have been applied to the general problem now before us, the availability of appellate review sought by the Government in criminal cases. E. g., United States v. More, 3 Cranch 159; United States v. Sanges, 144 U.S. 310; In re Heath, 144 U.S. 92;
There is a further principle, also supported by the history of federal appellate jurisdiction, that importantly pertains to the present problem. That is the concept that in the federal jurisprudence, at least,
It is true that certain orders relating to a criminal case may be found to possess sufficient independence from the main course of the prosecution to warrant treatment as plenary orders, and thus be appealable on the authority of 28 U. S. C. § 1291 without regard to the limitations of 18 U. S. C. § 3731, just as in civil litigation orders of equivalent distinctness are appealable on the same authority without regard to the limitations of 28 U. S. C. § 1292.
But a motion made by a defendant after indictment and in the district of trial has none of the aspects of independence just noted, as the Court held in Cogen v. United States, 278 U.S. 221. As the opinion by Mr. Justice Brandeis explains, the denial of a pre-trial motion in this posture is interlocutory in form and real effect, and thus not appealable at the instance of the defendant. We think the granting of such a motion also has an interlocutory character, and therefore cannot be the subject of an appeal by the Government. In the present case the
The Court of Appeals sustained its jurisdiction on the basis of statutory provisions peculiar to the District of Columbia. Here again, the jurisdictional statutes are a product of historical development, and must be interpreted in that light. During the century from 1801 to 1901 the Congress several times organized and reorganized the courts of the District of Columbia, independently of the federal courts in the States. It is not necessary here to relate the chronology of shuffled jurisdictions and
In 1901 the Congress codified the laws of the District of Columbia, including those relating to the judicial system. District of Columbia Code, 31 Stat. 1189. Criminal jurisdiction was vested in the trial court of general jurisdiction, then known as the Supreme Court of the District of Columbia.
Section 935 of the Code of 1901 established this new provision:
The legislative history of the Code does not indicate why the Government was now given a right of appeal, but we may surmise that the draftsmen of the Code desired to adopt a procedural technique that was then in force in a large number of States.
Meanwhile, under the general provisions of § 226 of the 1901 Code, the practice had developed of allowing appeals from interlocutory orders in criminal cases. A particular instance disturbed the Congress in 1926, and it immediately passed a statute to eliminate the practice. It is apparent from the legislative history that it was interlocutory appeals for the defendant that were considered anomalous in a federal court and undesirable from the viewpoint of prompt dispatch of criminal prosecutions,
The allowance of appeal technique no longer exists as to cases coming from the District Court (the former Supreme Court), but if this section does not continue to have life by force of the words "or hereafter . . . taken," it does not matter, for § 226 itself was replaced in 1949
Thus the statutory context in which the court below made its ruling is seen to be this: Subject to stated limitations, the Government has the "same right of appeal" as the defendant in criminal cases in the District Court for the District of Columbia, but no party can appeal an interlocutory order in such cases. In United States v. Cefaratti, 91 U. S. App. D. C. 297, 202 F.2d 13, the Court of Appeals reconciled these rules by holding:
Applying this reasoning to orders for the suppression of evidence, the Court of Appeals concluded that such an order had the requisite finality and independence of the criminal case to be appealable under 28 U. S. C. § 1291. In the present case, the court below reaffirmed its Cefaratti analysis. Insofar as these decisions, resting on opinions of this Court,
But the Government contends that appealability under the District of Columbia statutes, though it requires a "final decision," does not call for the independent or separable character of the orders in the cases relied on by the Court of Appeals, because here it is not essential to characterize an order as plenary or disassociated from the criminal case, inasmuch as the Government has a comprehensive right of appeal within a criminal case in the District of Columbia. We do not agree that the standard of "final decisions" as prerequisite to appeal is something less or different under 28 U. S. C. § 1291 as the successor to § 226 of the District of Columbia Code of 1901 than it is under § 1291 as the successor to the nationally applicable appeal provisions of the Judicial Code. Cf. Stack v. Boyle, 342 U.S. 1, 6, 12. By this we do not mean to say that § 935 of the 1901 Code is no broader than 18 U. S. C. § 3731, but merely that the underlying concepts of finality are the same in each case.
As the outline of the statutory development demonstrates, both this Court and the Congress have been strict
And cf. H. R. Rep. No. 1363, 69th Cong., 1st Sess. Delays in the prosecution of criminal cases are numerous and lengthy enough without sanctioning appeals that are not plainly authorized by statute. We cannot do so here without a much clearer mandate than exists in the present terms and the historical development of the relevant provisions. Cf. United States v. Burroughs, 289 U.S. 159; United States v. Sanges, 144 U.S. 310.
The judgment of the Court of Appeals is reversed, and the case is remanded to the District Court for proceedings consistent with this opinion.
"(e) MOTION FOR RETURN OF PROPERTY AND TO SUPPRESS EVIDENCE.
A person aggrieved by an unlawful search and seizure may move the district court for the district in which the property was seized for the return of the property and to suppress for use as evidence anything so obtained on the ground that . . . (4) there was not probable cause for believing the existence of the grounds on which the warrant was issued, . . . . If the motion is granted the property shall be restored unless otherwise subject to lawful detention and it shall not be admissible in evidence at any hearing or trial. . . ."
"The courts of appeals shall have jurisdiction of appeals from all final decisions of the district courts . . . except where a direct review may be had in the Supreme Court."
18 U. S. C. § 3731:
"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 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.
"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.
"From a decision arresting a judgment of conviction except where a direct appeal to the Supreme Court of the United States is provided by this section.
"The appeal in all such cases shall be taken within thirty days after the decision or judgment has been rendered and shall be diligently prosecuted.
"Pending the prosecution and determination of the appeal in the foregoing instances, the defendant shall be admitted to bail on his own recognizance. . . ."
The references in the above statutes to "courts of appeals" and "district courts" encompass the United States Court of Appeals for the District of Columbia Circuit and the United States District Court for the District of Columbia. 28 U. S. C. §§ 43, 132, 451; 62 Stat. 991, as amended, 63 Stat. 107. See also 56 Stat. 271.
"In all criminal prosecutions the United States . . . shall have the same right of appeal that is given to the defendant, including the right to a bill of exceptions: Provided, That if on such appeal it shall be found that there was error in the rulings of the court during a trial, a verdict in favor of the defendant shall not be set aside."
D. C. Code, 1951, § 17-102:
"Nothing contained in any Act of Congress shall be construed to empower the United States Court of Appeals for the District of Columbia to allow an appeal from any interlocutory order entered in any criminal action or proceeding or to entertain any such appeal heretofore or hereafter allowed or taken."
Prior to the Acts of 1889 and 1891, there was no jurisdictional provision for appeal or writ of error in criminal cases. United States v. More, 3 Cranch 159; see United States v. Sanges, 144 U.S. 310, 319. A question of law arising in a case tried by a Circuit Court of two judges, if they disagreed on the question, could be brought here upon a certificate of division of opinion, at the request of either party, and (except during one two-year period) without awaiting the final outcome of the case in the Circuit Court. 2 Stat. 159; 17 Stat. 196; R. S. § 651. See United States v. Sanges, supra, at 320-321. The availability of this procedure for review, haphazard at best because dependent on disagreement between the two sitting judges, came to be very much diluted by the increasing frequency with which the Circuit Courts were conducted by a single judge. See Frankfurter and Landis, 79, 109.
Similarly, after review of noncapital convictions was again committed to the Circuit Courts of Appeals in 1897, it was held that upon a reversal of a conviction by that court, the Government could not bring the case here through the certiorari jurisdiction that had also been created by the Act of 1891. United States v. Dickinson, 213 U.S. 92. Section 240 of the Judicial Code later conferred this jurisdiction explicitly. 36 Stat. 1157.
The legislative history emphasizes the awareness of the Congress that Government appeals in criminal cases were a sharp innovation and congressional concern that such jurisdiction should go no farther at that time than the immediate problem of affording review for trial court opinions as to the construction or validity of federal statutes. In brief, the development of the Criminal Appeals Act was this: The House bill proposed adoption of the language of the District of Columbia Code of 1901, which had given the Government "the same right of appeal that is given to the defendant . . . ." (Quoted, note 6, supra, and discussed later in this opinion.) The Senate Committee on the Judiciary substituted a more specifically drawn measure, dividing the jurisdiction between this Court and the Circuit Court of Appeals along the line the 1891 Act had drawn for civil cases. After lengthy floor debate, in which various objections to the measure were put forth, it was amended on the floor by narrowing the classes of cases in which the Government could seek review, by limiting the jurisdiction to direct review here, and by adding the protective provisions noted above. The House accepted the Senate product. See H. R. Rep. No. 2119, 59th Cong., 1st Sess.; S. Rep. No. 3922, 59th Cong., 1st Sess.; S. Rep. No. 5650, 59th Cong., 2d Sess.; H. R. Conf. Rep. No. 8113, 59th Cong., 2d Sess.; 40 Cong. Rec. 8695, 9032-9033; 41 Cong. Rec. 2190-2197, 2745-2763, 2818-2825, 3044-3047. See also Frankfurter and Landis, 114-119.
"A person aggrieved by an unlawful search and seizure may move the district court for the district in which the property was seized for the return of the property and to suppress for use as evidence anything so obtained . . . . The motion to suppress evidence may also be made in the district where the trial is to be had. . . ."
We think that a contemporary illustration of this category is United States v. Ponder, 238 F.2d 825, where the suppression order related to a plenary proceeding that had been brought in order to impound election records for investigation by the Department of Justice and the grand jury.
An appeal by the United States was treated on the merits without discussion of appealability, where the move for return of papers was made after indictment, in United States v. Kirschenblatt, 16 F.2d 202 (C. A. 2d Cir.). That proceeding had elements of independent character because of its statutory context under the National Prohibition Act. Likewise, United States v. Ponder, 238 F.2d 825 (C. A. 4th Cir.), which has some broad language favoring appealability for the Government, on its facts was seen by the court as a proceeding independent of the pending criminal case. See note 17, supra.
Under the District of Columbia Code of 1901, to be discussed later in this opinion, the Government was granted "the same right of appeal that is given to the defendant, . . . Provided, That if on such appeal 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." 31 Stat. 1341. It was soon held that the effect of the proviso was to preclude entirely the taking of an appeal by the Government after a verdict for the defendant. United States v. Evans, 30 App. D. C. 58, approved, 213 U.S. 297; see United States v. Martin, 81 A.2d 651, 652-653 (Mun. Ct. App.).
"§ 1404. Motion to suppress—appeal by the United States
"In addition to any other right to appeal, the United States shall have the right to appeal from an order granting a motion for the return of seized property and to suppress evidence made before the trial of a person charged with a violation of—
[designated narcotics offenses]
"This section shall not apply with respect to any such motion unless the United States attorney shall certify, to the judge granting such motion, that the appeal is not taken for purposes of delay. Any appeal under this section shall be taken within 30 days after the date the order was entered and shall be diligently prosecuted." 70 Stat. 573.
The legislative history shows that the Department of Justice expressed a preference for the passage of other bills, which had been introduced to amend 18 U. S. C. § 3731 so as to authorize Government appeals from suppression orders in all federal prosecutions, and without the qualification requiring certification by the United States Attorney. See S. Rep. No. 1997, 84th Cong., 2d Sess. 19. The need for the enactment of the more limited measure was stated by the respective committees, which were aware of some of the prior court decisions, including those of the District of Columbia Circuit in Cefaratti and the instant case. See id., at 11, 15, 26; S. Rep. No. 2033, 84th Cong., 2d Sess. 16-19, 28; H. R. Rep. No. 2388, 84th Cong., 2d Sess. 5; Hearing before the Subcommittee on Improvements in the Federal Criminal Code of the Senate Committee on the Judiciary on S. 3760, 84th Cong., 2d Sess. 7-11, 38-43.
The more general bills referred to by the Department of Justice were S. 3423 and H. R. 9364, of the 84th Congress. In the current session of the 85th Congress, a bill to the same effect, H. R. 263, has been introduced.
"Any party aggrieved by any final order, judgment, or decree of the supreme court of the District of Columbia . . . may appeal therefrom to the said court of appeals; . . . . Appeals shall also be allowed to said court of appeals from all interlocutory orders of the supreme court of the District of Columbia . . . whereby the possession of property is changed or affected, such as orders for the appointment of receivers, granting injunctions, dissolving writs of attachment, and the like; and also from any other interlocutory order, in the discretion of the said court of appeals, whenever it is made to appear to said court upon petition that it will be in the interest of justice to allow such appeal."
Since the Court of Appeals relied on precedents of general applicability to finality problems in construing the District of Columbia statutory provisions, we do not consider that this case falls within the policy that ordinarily causes us to adhere to that court's view on local law matters. Cf. Del Vecchio v. Bowers, 296 U.S. 280, 285; see Griffin v. United States, 336 U.S. 704, 712-718.