MR. JUSTICE HARLAN delivered the opinion of the Court.
The Government seeks to appeal to this Court a decision by a District Court in Massachusetts holding that appellee Sisson could not be criminally convicted for refusing induction into the Armed Forces. The District Court's opinion was bottomed on what that court understood
The District Court characterized its own decision as an arrest of judgment, and the Government seeks review here pursuant to the "arresting judgment" provision of the Criminal Appeals Act, 18 U. S. C. § 3731, an Act that narrowly limits the Government's right to appeal in criminal cases to certain types of decisions. On October 13, 1969, this Court entered an order postponing further consideration of the question of jurisdiction to the hearing of the case on the merits, 396 U.S. 812 (1969). For reasons that we elaborate in what follows, we conclude that the decision below, depending as it does on facts developed at Sisson's trial, is not an arrest of judgment but instead is a directed acquittal. As such, it is not a decision that the Government can appeal. Consequently, this appeal must be dismissed for lack of jurisdiction without our considering the merits of this case. We, of course, intimate no view concerning the correctness of the legal theory by which the District Court evaluated the facts developed at the trial.
A single-count indictment charged that Sisson "did unlawfully, knowingly and wilfully fail and neglect and refuse to perform a duty" imposed by the Military Selective Service Act of 1967 and its regulations, in violation of § 12 of the Act, 81 Stat. 105, 50 U. S. C. App. § 462 (a) (1964 ed., Supp. IV), because he failed to obey an order by his local draft board to submit to induction.
Prior to trial, Sisson's attorney moved to dismiss the indictment on three grounds. It was claimed that Sisson's refusal to submit to induction was justified first, because "the government's military involvement in Vietnam violates international law"; and, second, because Sisson "reasonably believed the government's military involvement in Vietnam to be illegal." As a third ground, Sisson claimed that the Selective Service Act and its regulations were unconstitutional (a) because the procedures followed by local boards lacked due process; and (b) because compulsory conscription during peacetime was unnecessary and stifled fundamental personal liberties. In support of the motion to dismiss, appellee stated:
Defense counsel did not dispute the District Court's analysis, and noted that he had raised the issue in his motion to dismiss only "in the interest of economy," because "[i]t was not clear at the time I filed the motion that the government would challenge this fact." (App. 52.) The court expressed doubts concerning the Government's willingness to concede this fact, and, when asked by the court, the government counsel specifically stated his opposition to the motion to dismiss. The court thereupon found the "second ground" of the motion to dismiss without merit.
A short time after this hearing, the District Court issued two written opinions, 294 F.Supp. 511 and 515 (1968), that denied the other grounds of the motion to dismiss. After determining that appellee had the requisite standing to raise the issues involved, the court held that the political question doctrine foreclosed consideration of whether Congress could constitutionally draft for
An order accompanying the second pretrial opinion also dealt with various offers of proof that defense counsel had made in an informal letter to the court, not part of the record. From the order it appears that appellee's counsel stated he would "offer evidence to show that [Sisson] properly refused to be inducted on the basis of his right of conscience, both statutory and constitutional." Not understanding the scope of this rather ambiguous offer of proof, the District Court in its order ruled that if Sisson wished to make a conscientious objector claim based on religious objections not to wars in general but to the Vietnam war in particular, Sisson should make his offer of proof initially to the judge
At the trial, however, it appears that defense counsel did not try to prove that Sisson should have received a conscientious objector exemption, nor did he request a ruling on the First Amendment issues referred to by the trial court. Instead it seems that the defense strategy was to prove that Sisson believed the Vietnam war to be illegal under domestic and international law, and that this belief was reasonable. If unable to get a direct adjudication of the legality of the war, the defense at least
There was evidence submitted at the trial that did bear on the conscientious objector issue, however. When asked why he had refused induction, Sisson emphasized that he thought the war illegal. He also said that he felt the Vietnam war was "immoral," "illegal," and "unjust," and went against "my principles and my best sense of what was right." The court asked Sisson what the basis for his conclusions was, particularly what Sisson meant when he said the war was immoral. Sisson said that the war violated his feelings about (1) respect for human life, (2) value of man's freedom, and (3) the scale of destruction and killing consonant with the stated purposes of American intervention. Sisson also stated, in response to the trial judge's question, that his "moral values come from the same sources [the trial court had] mentioned, religious writings, philosophical beliefs."
The prosecution did not allow Sisson's testimony to stand without cross-examination. In apparent reliance
In the final arguments to the jury, just as in the opening statements, neither counsel mentioned a religious or nonreligious conscientious objector issue. The defense argued that the key to the case was whether Sisson had "wilfully" refused to submit to induction, and tried to suggest his beliefs about the war were relevant to this. The government lawyer simply pointed out the operative facts of Sisson's refusal. He also attacked Sisson's sincerity by pointing out the inconsistency between Sissons' broad statements that he opposed deferments because they discriminated against the poor,
The instructions to the jury made no reference to a conscientious objector claim, and the jury was not asked to find whether Sisson was "sincere" in his moral beliefs concerning the war. Instead the trial court told the jury that the crux of the case was whether Sisson's refusal to submit to induction was "unlawfully, knowingly and wilfully" done.
After the trial, the defendant made a timely motion under Fed. Rule Crim. Proc. 34 to arrest the judgment on the ground that the District Court lacked jurisdiction.
The District Court, in granting what it termed a motion in arrest of judgment, did not rule on the jurisdictional argument raised in the defense motion. Instead, the court ruled on what it termed defendant's "older contention"
The court first stated the facts of the case, in effect making findings essential to its decision. The opinion
Building on these findings, the court first held that the Free Exercise and Due Process Clauses "prohibit the application of the 1967 draft act to Sisson to require him to render combat service in Vietnam" because as a "sincerely conscientious man," Sisson's interest in not killing in the Vietnam conflict outweighed "the country's present need for him to be so employed." The District Court also ruled that § 6 (j) of the Selective Service Act, 50 U. S. C. App. § 456 (j) (1964 ed., Supp. IV), offends the Establishment Clause because it "unconstitutionally discriminated against atheists, agnostics, and men, like Sisson, who, whether they be religious or not, are motivated in their objection to the draft by profound moral beliefs which constitute the central convictions of their beings." 297 F. Supp., at 911.
The Government bases its claim that this Court has jurisdiction to review the District Court's decision exclusively on the "arresting judgment" provision of the
Thus, three requirements must be met for this Court to have jurisdiction under this provision. First, the decision of the District Court must be one "arresting a judgment of conviction." Second, the arrest of judgment
Because the District Court's decision rests on facts not alleged in the indictment but instead inferred by the court from the evidence adduced at trial, we conclude that neither the first nor second requirement is met.
We begin with the first requirement: was the decision below one "arresting a judgment of conviction"? 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 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
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.
This venerable requirement of the common law has been preserved under the Federal Rules of Criminal Procedure, for the courts have uniformly held that in granting
To avoid the inescapable conclusion that the District Court's opinion was not an arrest of judgment, the Government makes two arguments. First, the Government suggests that these factual findings of the District Court, based on the evidence presented at trial, were not essential to its constitutional rulings, but instead only part of "the circumstantial framework" of the opinion below. (Jurisdictional Statement 9; see Brief 8.) This
Second, the Government argues that even though the District Court made findings on evidence adduced at trial, the facts relied on were "undisputed." Adopting the language used by the court below, the Government claims that "in substance the case arises upon an agreed statement of facts." 297 F. Supp., at 904. The Government then goes on to argue that decisions of this Court have "recognized that a stipulation of facts by the parties in a criminal case" can be relied on by the District Court without affecting the jurisdiction for an appeal, citing United States v. Halseth, 342 U.S. 277 (1952), and United States v. Fruehauf, 365 U.S. 146
Preliminarily, it should be noted that this Court has never held that an appeal lies from a decision which depends, not upon the sufficiency of the indictment alone, but also on a stipulation of the parties. In Halseth the parties did enter into a stipulation for purposes of a motion to dismiss. But the facts in the stipulation were irrelevant to the legal issue of whether the federal anti-lottery statute reached a game not yet in existence. Therefore, neither the District Court in dismissing the indictment, nor this Court in affirming its decision, had to rely on the stipulation. And, for purposes of deciding whether jurisdiction for an appeal under § 3731 existed, the Court obviously did not have to decide—and it did not discuss—whether reliance on a stipulation would make any difference. Insofar as United States v. Fruehauf, supra, the other case cited by the Government, is relevant at all it seems to point away from the Government's contention. In Fruehauf this Court refused to consider the merits of an appeal under § 3731 from a District Court decision dismissing an indictment on the basis of a " `judicial admission' culled from a pretrial memorandum" of the Government by the District Judge. Rather than penalizing the Government by dismissing the appeal, however, the Court simply exercised its discretion under 28 U. S. C. § 2106 by setting aside the ruling below, and remanding the case for a new trial on the existing indictment.
Not only do the cases cited by the Government fail to establish its contention, but other authority points strongly in the opposite direction. In United States v. Norris, 281 U.S. 619 (1930), this Court said that a "stipulation
We do not decide that issue, however, for there was nothing even approaching a stipulation here. Before the court's final ruling below, the parties did not in any way, formally or informally, agree on the factual findings made in its opinion. It is relevant to recall that before the trial the government attorney specifically refused to stipulate whether Sisson sincerely believed the war to be illegal, and, if so, whether such a belief was reasonable. Moreover, given that the government attorney cross-examined Sisson, and later pointed out the inconsistency between Sisson's acceptance of a II-S student deferment and his claim that he disapproved of deferments as unfair, it hardly seems the Government accepted Sisson's sincerity insofar as it was an issue in the case. Therefore, far from being like a case with a formal stipulation between the parties, the most that can be said is that after the District Court's decision the Government chose to accept the opinion's findings of fact. Even assuming reliance on a formal stipulation were permissible,
The second statutory requirement, that the decision arresting judgment be "for insufficiency of the indictment," is also not met in this case. Senator Nelson, one of the sponsors of the Criminal Appeals Act, made it plain during the debates that this second element was an important limitation. He said:
See also 40 Cong. Rec. 9033. Although the District Court's opinion recites as a conclusion that the indictment in this case did "not charge an offense" for purposes of Rule 34, surely the indictment alleged the necessary elements of an offense.
The same reason underlying our conclusion that this was not a decision arresting judgment—i.e., that the disposition is bottomed on factual conclusions not found in the indictment but instead made on the basis of evidence adduced at the trial—convinces us that the decision was in fact an acquittal rendered by the trial court after the jury's verdict of guilty.
If a jury had been so instructed, there can be no doubt that its verdict of acquittal could not be appealed under § 3731 no matter how erroneous the constitutional theory underlying the instructions. As Senator Knox said of the bill that was to become the Criminal Appeals Act:
Quite apart from the statute, it is, of course, well settled that an acquittal can "not be reviewed, on error or otherwise, without putting [the defendant] twice in jeopardy, and thereby violating the Constitution. . . . [I]n this country a verdict of acquittal, although not followed by
There are three differences between the hypothetical case just suggested and the case at hand. First, in this case it was the judge—not the jury—who made the factual determinations. This difference alone does not support a legal distinction, however, for judges, like juries, can acquit defendants, see Fed. Rule Crim. Proc. 29. Second, the judge in this case made his decision after the jury had brought in a verdict of guilty. Rules 29 (b) and (c) of the Federal Rules of Criminal Procedure, however, expressly allow a federal judge to acquit a criminal defendant after the jury "returns a verdict of guilty." And third, in this case the District Judge labeled his post-verdict opinion an arrest of judgment, not an acquittal. This characterization alone, however, neither confers jurisdiction on this Court, see n. 7, supra, nor makes the opinion any less dependent upon evidence adduced at the trial. In short, we see no distinction between what the court below did, and a post-verdict directed acquittal.
The dissenting opinions of both THE CHIEF JUSTICE and MR. JUSTICE WHITE suggest that we are too niggardly in our interpretation of the Criminal Appeals Act, and each contends that the Act should be more broadly construed to give effect to an underlying policy that is said to favor review. This Court has frequently stated that the "exceptional right of appeal given to the Government by the Criminal Appeals Act is strictly limited to the instances specified," United States v. Borden Co., 308 U.S. 188, 192 (1939), and that such appeals "are something unusual, exceptional, not favored," Carroll v. United States, 354 U.S. 394, 400 (1957); see United States v. Keitel, 211 U.S. 370, 399 (1908); United States v. Dickinson, 213 U.S. 92, 103 (1909); cf. Will v. United States, 389 U.S. 90, 96 (1967). The approach suggested by our Brothers seems inconsistent with these notions. Moreover, the background and legislative history of the Criminal Appeals Act demonstrate the compromise origins of the Act that justify the principle of strict construction this Court has always said should be placed on its provisions. Because the Criminal Appeals Act,
Beginning in 1892—15 years before the enactment of the Criminal Appeals Act—the Attorneys General of the United States regularly recommended passage of legislation allowing the Government to appeal in criminal cases.
The House, as one commentator has written, "was obedient to the presidential command."
The next session, after the bill was again reported out of the Senate Judiciary Committee,
With all these amendments the Senate passed the bill without division on February 13, 1907,
With this perspective, we now examine the arguments made in opposition to our conclusion. It is argued in
The dissenters propose in effect to create a new procedure —label it a decision arresting judgment—in order to conclude that this Court has jurisdiction to hear this appeal by the Government. The statutory phrase "decision arresting a judgment" is not an empty vessel into which this Court is free to pour a vintage that we think better suits present-day tastes. As we have shown, Congress defined our jurisdiction in the Criminal Appeals Act in terms of procedures existing in 1907. As a matter of interpretation, this Court has no right to give the statutory language a meaning inconsistent with its common-law antecedents, and alien to the limitations that today govern motions in arrest of judgment under Rule 34.
Radical reinterpretations of the statutory phrase "decision arresting a judgment" are said to be necessary in order to effectuate a broad policy, found to be underlying the Criminal Appeals Act, that this Court review important legal issues. The axiom that courts should endeavor to give statutory language that meaning that nurtures the policies underlying legislation is one that
In this regard, the legislative history reveals a strong current of congressional solicitude for the plight of a criminal defendant exposed to additional expense and anxiety by a government appeal and the incumbent possibility of multiple trials. Criminal appeals by the Government "always threaten to offend the policies behind the double-jeopardy prohibition," Will v. United States, supra, at 96, even in circumstances where the Constitution itself does not bar retrial. Out of a collision between this policy concern, and the competing policy favoring review, Congress enacted a bill that fully satisfied neither the Government nor the bill's opponents.
Were we to throw overboard the ballast provided by the statute's language and legislative history, we would cast ourselves adrift, blind to the risks of collision with other policies that are the buoys marking the safely navigable zone of our jurisdiction. As we have shown, what the District Court did in this case cannot be distinguished from a post-verdict acquittal entered on the ground that the Government did not present evidence sufficient to prove that Sisson was insincere. A primary concern of the bill that emerged into law was that no appeal be taken by the Government from an acquittal no matter how erroneous the legal theory underlying the decision. Moreover, going beyond the present case, the theory of those in disagreement would allow a trial judge to reserve to himself the resolution of disputes concerning facts underlying a claim that in particular circumstances a speech or protest march were privileged under the First Amendment, a practice plainly inconsistent with a criminal defendant's jury trial rights.
Quite apart from the arresting judgment provision, it is also argued that we have jurisdiction under the "motion in bar" provision of the Criminal Appeals Act. We think it appropriate to address ourselves to this contention, particularly in light of the fact that we asked the parties to brief that issue,
There is, in our view, still another reason no appeal can lie in this case under the motion-in-bar provision. We construe the Criminal Appeals Act as confining the
Our conclusion draws strength from the fact that the Government itself has placed exactly this same interpretation
Later, after describing the opinion in Zisblatt, supra, in which the Second Circuit certified an appeal to this Court to determine whether the phrase "not been put in jeopardy" merely incorporated the constitutional limitation, or instead should be taken literally, the Government's brief states:
This interpretation in our view deserves great weight.
Clarity is to be desired in any statute, but in matters of jurisdiction it is especially important. Otherwise the courts and the parties must expend great energy, not on the merits of dispute settlement, but on simply deciding whether a court has the power to hear a case. When judged in these terms, the Criminal Appeals Act is a failure. Born of compromise, and reflecting no coherent allocation of appellate responsibility,
The Solicitor General, at oral argument in this case, forthrightly stated that "there are few problems which occur so frequently or present such extreme technical difficulty in the Solicitor General's office [as] in the proper construction of the Criminal Appeals Act."
We conclude that the appeal in this case must be dismissed for lack of jurisdiction.
It is so ordered.
MR. JUSTICE BLACK concurs in the judgment of the Court and Part II C of the opinion.
MR. JUSTICE BLACKMUN took no part in the consideration or decision of this case.
MR. CHIEF JUSTICE BURGER, with whom MR. JUSTICE DOUGLAS and MR. JUSTICE WHITE join, dissenting.
Both the Government and Sisson have argued that this Court has jurisdiction to review the District Court's
In rejecting the arguments of the parties the Court holds that we have no jurisdiction to hear this appeal, opting for the view that the "arrest of judgment" clause carries with it all of its common-law antecedents and that the present case does not meet the criteria required by the common law. My disagreement with the Court's result and rationale is prompted by a fundamental disagreement with the Court's mode of analysis and its excessive reliance on ancient practices of common-law England long superseded by Acts of Congress.
Section 3731 appears to set three requirements for jurisdiction in this Court: (1) the decision from which the appeal is taken must be one "arresting a judgment of conviction"; (2) the decision must be engendered by the "insufficiency of the indictment or information"; and (3) it must be "based upon the invalidity or construction of the statute upon which the indictment or information is founded."
The first requirement, that the decision from which the appeal is taken must be one "arresting a judgment of conviction," can without undue violence to its language be construed as being encrusted with the lore of centuries of common-law jurisprudence, and the Court has so construed it. The form of an "arrest of judgment" was well established at an early date in the common law's development; Blackstone was able to describe a clearly defined motion in arrest as a device that was procedurally
Much, if not all, of the common-law learning was transplanted to the United States. As early as 1807, the Court recognized the existence of the motion in United States v. Cantril, 4 Cranch 167 (1807): And, in 1820, Chief Justice Marshall stated for the Court that "judgment can be arrested only for errors apparent on the record . . . ." United States v. Klintock, 5 Wheat. 144, 149 (1820). See also Carter v. Bennett, 15 How. 354 (1854); Bond v. Dustin, 112 U.S. 604 (1884).
Whether § 3731's requirement of an arrest of judgment incorporates the common-law jurisprudence, or
The Solicitor General also has conceded that § 3731 uses the term "arrest of judgment" in its common-law sense. However, he has sought to avoid the inescapable implications of this concession by arguing that the District Court, "in granting appellee's motion, did not base its action wholly on the allegations of the indictment, but used as a partial predicate for its constitutional rulings the undisputed fact, which appeared from the evidence at trial, that appellee is a non-religious conscientious objector to participation in the Vietnam conflict."
I conclude that evidence adduced at trial can be considered by a district court as the basis for a motion in arrest of judgment when that evidence is used solely for the purpose of testing the constitutionality of the charging statute as applied. I do so because the legislative history surrounding the passage of the Criminal Appeals Act abundantly shows Congress contemplated review by this Court in such a case. The reasons for the Court's face-of-the-record limitation, in the technical common-law form of an arrest of judgment, have long since disappeared, and the Court's reliance on a policy disfavoring appeals under the Criminal Appeals Act is misplaced.
The Court's reasoning pays scant attention to the purpose of the Criminal Appeals Act and to the problem that Congress was attempting to solve in 1907 when the Act was passed. The legislative history of the Criminal Appeals Act reflects the strong desire by a number of Attorneys General of the United States for an appellate remedy in selected criminal cases.
The House passed, without debate, a bill that gave the United States in all criminal prosecutions "the same right of review by writ of error that is given to the defendant," provided that the defendant not twice be put in jeopardy for the same offense. 40 Cong. Rec. 5408 (1906). The Senate, however, refused to accept the House bill. Rather, its Judiciary Committee offered as a substitute a more complicated bill which ultimately was refined to become the Criminal Appeals Act. In relevant part, the substitute would have allowed a writ of error by the United States "[f]rom the decision arresting a judgment of conviction for insufficiency of the indictment." S. Rep. No. 3922, 59th Cong., 1st Sess. (1906). When the substitute came to the floor of the Senate, the floor leader for the bill, Senator Knute Nelson of Minnesota, explained the need for the legislation in constitutional terms: "[S]ometimes an indictment is set aside on the ground that the law under which the indictment was found is held to be unconstitutional. The object [of this bill] is to allow the Government to take the case up and get a ruling of the Supreme Court." 40 Cong. Rec. 8695 (1906) (emphasis added). The bill was then put over in the absence of unanimous consent for consideration. When the bill returned to the floor, questions were raised with respect to the arrest of judgment provision regarding the prohibition against double jeopardy. Unanimous consent to proceed again was withdrawn and the bill was again put over. 40 Cong. Rec. 9033 (1906).
An amended bill was reported out of committee in January of 1907. When this bill reached the floor, a
"Trial errors" respecting the fact-finding function— which affect only the particular trial—were distinguished from errors of law that had been separated from the trial on the merits, and that involved constitutional rulings that could affect future attempts of the Government to prosecute under the same statute:
The Senate passed the bill with the acquired floor amendments on February 13, 1907. 41 Cong. Rec. 2825 (1907). The House insisted on a conference, but the conference committee adopted the Senate version. The resulting conference committee bill was ultimately adopted. 41 Cong. Rec. 3994, 4128 (1907).
Notably, the debates on the Senate bill which formed the basis of the Act demonstrate a total lack of concern with the technical niceties of ancient common-law forms of pleading. And, far from distinguishing cases where a congressional act was invalidated on its face from cases where it was invalidated as applied to a situation that Congress clearly intended to reach, the debates appear to contemplate both cases as appropriate for appeal to this Court—certainly the evil aimed at—and the rationale of the Act is broad enough to encompass both situations. Appeal was to be for the purpose of deciding "constitutional questions," "questions of law" which, if the district judge's decision were permitted to stand, could lead to conflict and different treatment under the same
It is difficult to imagine a case more closely fitting into this rationale than that now before us. The class of nonreligious conscientious objectors is not likely to be a small one. Indeed under the impetus of this holding it is likely to grow. Yet whether or not a member of that class can constitutionally be punished for refusing to submit to induction now depends on where that person is tried and by whom. That one district judge may entertain a different view of the Constitution than does another is an extraordinary reason for differing results in cases that rationally ought to be decided the same way—and with appellate review available to insure that end. The conclusion that this is not a "motion in arrest," insulates the judge's constitutional decision from review anywhere—here or in the Court of Appeals. That, I submit, is precisely the situation Congress thought it was correcting with the Criminal Appeals Act. It is remarkable that the Court finds it so easy to ignore the explicit and meaningful legislative history which refutes its strained reading of the statute and history.
The common-law rule that an arrest of judgment could be based on nothing more than the judgment roll seems to have been required by the existence of the very limited record of that day which did not include the evidence adduced at trial. Evidentiary matters were not before the appellate courts, and it would have been impossible for the arresting court's "successors [to] know the grounds of their judgment," Sutton v. Bishop, supra, if the arresting court considered the evidence at trial. This
Accordingly, while the District Court admittedly looked to evidence, including demeanor evidence, for its findings that Sisson was "sincere" and was "genuinely and profoundly governed by his conscience," this use for that purpose should not now bar this Court from considering the District Court's action as an arrest of judgment. As long as the evidence was used to test the constitutionality of the charging statute as applied to the defendant, and not to test the sufficiency of the proof against the allegations in the indictment, the use of the evidence was consistent with the purposes of an arrest of judgment.
In this case, there has been no finding that Sisson did not commit the acts charged; there has been only a holding by the trial judge that his acts were constitutionally protected—a holding that stands as the sole impediment to imposing a jury verdict of guilty; no verdict of acquittal was ever returned. Even our present Federal Rules of Criminal Procedure make a similar distinction between a "Motion for Judgment of Acquittal," Rule 29, and an "Arrest of Judgment," Rule 34. The former is entered "if the evidence is insufficient to sustain a conviction" of the offense charged, while the latter is granted where the indictment "does not charge an offense" at all. Rule 29 allows a judge to reserve his decision on a motion for judgment of acquittal until after the jury has returned a verdict. If he then grants the motion, the defendant stands acquitted, but again only because the evidence has been found insufficient to support the charge. Where the grounds for granting an "acquittal" are based on an independent legal decision
I cannot believe that Congress, fully aware that no appeal was available for a directed verdict or judgment n. o. v., contemplated that this form of judicial action should be accorded the same nonappealable status. Moreover, the sophisticated District Judge could have entered a judgment n. o. v. if he wanted to avoid review or if he thought that he was indeed passing on the sufficiency of the evidence to meet the allegations of the indictment. Of course, his views are not controlling, but I am comforted by his appraisal and quite satisfied he knew precisely what he was doing—or thought he did on the assumption that his action was reviewable under well-established principles the Court now ignores.
The Court also inveighs against a "broad" construction of the Act, noting that this Court has denominated an appeal by the Government in a criminal case as an "exceptional right," and as "something unusual, exceptional, not favored." Ante, at 291. This is an odd characterization; the right is precisely as "exceptional" or "unusual" as Congress makes it. This Court has no power to define the scope of its own appellate review in this context and a subjective distaste for review at the instance of government has no proper place in adjudication. The tendency to be miserly with our jurisdiction did not prevent our construing the three-judge court acts to include cases where statutes were held unconstitutional as applied, Query v. United States, 316 U.S. 486 (1942); C. Wright, Federal Courts 190 (2d ed. 1970), and it should not carry any more weight in assessing our responsibility to decide the constitutional issues in this
The second requirement, that the decision of the District Court must rest upon the "insufficiency of the indictment," also presents a difficult question here. The Court emphasizes, wrongly, in my view, that both grounds upon which the District Court's decision rests are defenses that Sisson successfully asserted. In an ordinary case, an indictment, to be sufficient, need not anticipate affirmative defenses. This, however, is not the ordinary case. The indictments in cases of this nature typically charge only that the Selective Service registrant
Yet this allegation subsumes in its terse language a myriad of elements that the Government may be called upon to prove if the defense makes an appropriate challenge. Prosecutions for refusing to submit to induction are unusual because they incorporate into the judicial proceeding much that has occurred in the administrative processes of the Selective Service System. All of the courts of appeals have compensated for the administrative proceedings by holding that the Government need not plead and prove many elements that would normally be a part of its case-in-chief. The courts of appeals have devised a presumption of regularity which attaches to the official acts of the local boards that, standing alone, is sufficient to preclude reversal of a conviction when a given element is not raised at trial. See particularly Yates v. United States, 404 F.2d 462 (C. A. 1st Cir. 1968) (presumption of regularity attaches to the order-of-call requirement). However, if the defendant succeeds in making a prima facie case against the presumption, the Government is put to its proof on the particular element of the offense. See United States v. Baker, 416 F.2d 202 (C. A. 9th Cir. 1969).
By analogy, the Government is not required to plead and prove that the defendant was properly classified in category I-A as available for induction. Rather, the
The Court also appears to assume that an indictment may be "insufficient" because the acts charged cannot constitutionally be made an offense, e. g., where they show the existence of a constitutional privilege that bars conviction. But, the Court concludes that "this indictment . . . does not allege facts that themselves demonstrate the availability of a constitutional privilege." Ante, at 288.
In my view, the Court's suggestion is simply the same argument, differently approached, as the argument that a motion in arrest can be based only on facts appearing on the face of the record. In both cases, the single question, as I see it, is whether Congress drew a distinction for purposes of appeal by the Government, between cases in which the district court found the entire statute unconstitutional, and cases in which the court found the statute unconstitutional as applied.
The view has been expressed that the Criminal Appeals Act is badly drawn and gives rise to a multitude of problems. We can all agree as to the infirmities of the statute but this is hardly an excuse to take liberties with its plain purposes reasonably articulated in its terms. Prior
MR. JUSTICE WHITE, with whom THE CHIEF JUSTICE and MR. JUSTICE DOUGLAS join, dissenting.
I agree with THE CHIEF JUSTICE that this case can be appealed by the Government under the "motion in arrest" provision of the Criminal Appeals Act. In contrast to the rather clear remedial purpose of the Act, not a single passage in the legislative history indicates awareness by Congress that the words it was using had the effect of distinguishing cases where a congressional Act was held invalid on its face from cases where it was invalidated as applied to a sub-class within the Act's intended reach. In both cases, the indictment is "insufficient" to state a valid offense.
We asked the parties in this case to consider whether 18 U. S. C. § 3731 confers jurisdiction on the ground that the lower court had sustained "a motion in bar, when the defendant has not been put in jeopardy." The majority, after a lengthy discussion of the "motion in arrest" provision, condescends to address a few remarks to this question, with the suggestion that it really need not discuss the issue at all, since it has concluded that Judge Wyzanski's action amounted to "an acquittal." As MR.
The only reason the majority gives for concluding that Sisson has been acquitted is based, not on what actually happened, but on what might have happened. Since Judge Wyzanski could have submitted the case to the jury on instructions reflecting his view of the law, and since the jury so instructed could have returned a verdict of "not guilty," therefore we must pretend that that is what has actually happened. That suggestion is nonsense. One does not determine "what in legal effect [Judge Wyzanski's decision] actually was," ante, at 279 n. 7, by asking "what in legal effect the decision might have been." If that were the key question, then this Court should not have had jurisdiction in United States v. Covington, 395 U.S. 57 (1969) (HARLAN, J.). There the trial judge accepted the defendant's argument that the Fifth Amendment prevented the Marihuana Tax Act from constitutionally being applied to him. Under the majority's view, that action would amount to an acquittal because the judge might have given the case to the jury under instructions that it should acquit if it found the facts necessary to sustain the defendant's privilege—e. g., that he was not one of the registered marihuana dealers whose conduct was legal under state law. Indeed, if applied consistently the majority's theory would mean that there is no case that could be appealed to this Court under the
It was precisely this distinction that Senator Knox was referring to in the passage quoted in the majority opinion, ante, at 289: the defendant retains the benefit of any error whatever committed by the court "in the trial"; but the Government gets an appeal "upon questions
I suspect that the Court's reluctance to discuss the "motion in bar" provision and to distinguish the granting of such motions from an acquittal stems from the fact that, unlike the "motion in arrest," there is no doubt that a "motion in bar" properly sets forth an affirmative defense, which necessarily requires resort to facts not found in the indictment or on the face of the "record." Thus most of the majority's argument that this case is not appealable as a "motion in arrest" because "[t]he decision below rests on affirmative defenses," ante, at 287-288, is simply irrelevant as far as the "motion in bar" is concerned.
In fact, as the majority seems to concede by its reluctance to reject square precedent on the issue, see ante, at 300 n. 53, our cases make clear that the phrase "motion in bar" would include a plea like Sisson's that the selective service laws are unconstitutional as applied to him. The Court has never adopted the view that a "motion in bar" encompasses only the common-law defenses of autrefois acquit, autrefois convict, and pardon.
Even under the narrower interpretation of MR. JUSTICE STEWART, Sisson's plea qualifies as a "motion in bar." For as the majority's opinion makes clear, the crux of the case against Sisson was simply whether or not he had wilfully refused to submit to induction; the question of his sincerity was "new matter" relied on to deprive the fact of his wilfull refusal of its ordinary legal effect. See majority opinion, ante, at 276; United States v. Blue, 384 U.S. 251, 254 (1966) (HARLAN, J.). Just as our cases have permitted the "motion in bar" to embrace limitations pleas, see, e. g., United States v. Goldman, 277 U.S. 229 (1928), and pleas of constitutional privilege, see United States v. Murdock, 284 U.S. 141 (1931), so too they permit the "motion in bar" to reach cases of this sort, attacking the validity of the statute as applied to the defendant. See United States v. Covington, 395 U.S. 57 (1969) (HARLAN, J.); United States v. Blue, supra, at 254 (HARLAN, J.).
Procedurally, the fact that the plea is sustained only after a jury verdict of conviction—and the fact that the judge labeled his action as something other than a "motion in bar"—does not prevent finding a "motion in bar." United States v. Zisblatt, 172 F.2d 740, 742 (C. A. 2d Cir.), appeal dismissed, 336 U.S. 934 (1949). Even
The legislative history of the 1907 Act unmistakably shows that Congress meant to allow the Government an appeal from a decision sustaining a motion in bar in every case except where the defendant was entitled to the protection of the constitutional guarantee against double jeopardy. I find the debates so convincing on that point that I am at a loss to understand why the Government has so readily conceded the issue unless it be to maintain the appearance of consistency, and to protect its interests in securing new criminal appeals legislation before Congress.
Out of three full days of debate in the Senate, covering more than 30 pages of the Congressional Record, see 41 Cong. Rec. 2190-2197, 2744-2763, 2818-2825, the majority finds a total of three passages to cite in a footnote as support for its interpretation, see ante, at 304-305, n. 57. In each case, the statements placed in context prove just the opposite of the majority's conclusion. The first reference, to a passage before debate even began, 40 Cong. Rec. 9033, is to Senator Spooner's
In the second passage, 41 Cong. Rec. 2191, the majority quotes Senator Nelson for the proposition that no appeal would lie where a jury had been impaneled. The actual quotation is that no appeal would lie "where a jury has been impaneled and where the defendant has been tried . . . ." 41 Cong. Rec. 2191 (emphasis added). In context, it is clear that Senator Nelson is venturing an interpretation of "jeopardy" in the legal sense. The whole dispute at this point in the debate is
Senator Bacon during this same exchange noted that the "jeopardy" provisions had been put in "out of abundance of caution," 41 Cong. Rec. 2191. He proceeded to explain by his remarks that he meant precisely what the majority today declares he could not have meant— namely, that Congress was simply emphasizing that it was not attempting to subject a defendant to constitutional
It is hardly "superfluous" for Congress to guard against a construction of an Act that might render the Act unconstitutional. And the fact that the majority would have written the statute differently to avoid what it calls a "superfluous" reading, is no excuse for ignoring the explicit indication that that is exactly the reading that Congress meant the phrase to bear.
It is obvious from these remarks that Senator Patterson did not think that the question of "jeopardy" under the motion-in-bar provision was simply a question of whether the jury had been impaneled.
This interpretation is made doubly clear by the remarks of Senator Nelson, the leading proponent of the bill. He also addressed himself to the Beef Trust Case and, unlike Senator Patterson, he suggested that that case could not have been appealed under the Act. But the reason he gave for that conclusion was not that the jury had been impaneled, but that the jury had been impaneled and had returned a verdict of not guilty under the judge's instructions, thus placing the defendants in "legal jeopardy":
See 41 Cong. Rec. 2750 (remarks of Senator Nelson).
Senator Nelson was thus talking about the majority's "might have been case"—the case where the judge gives the motion in bar issue to the jury under his novel view of the law, so that a successful government appeal would require retrying the defendant. In the immediately following passage, Senator Nelson makes clear that if the facts pleaded in the special issue are not submitted to the jury, but tried to the judge, there would be no bar to taking an appeal. But in both cases, Senator Nelson, like Senator Patterson, is quite obviously giving his views as to what "constitutional jeopardy" means.
While the debates are replete with other indications that Congress' concern was with "double jeopardy," not "literal jeopardy," the clearest such indication occurs in this very exchange between Senator Rayner, who announced his opposition to the bill in any form, 41 Cong. Rec. 2745, and Senators Spooner, Patterson, and Nelson—proponents of the bill. The exchange occupied most of the second day of the three days of debate in the Senate and centered almost entirely on Senator Rayner's proposed amendment. The example that Senator Rayner used to illustrate the difficulties he saw in the bill was a hypothetical case in which a plea in bar—a limitations plea—was sustained halfway through the trial. See 41 Cong. Rec. 2749. In that case, Senator Rayner argued, no one could say with certainty whether the defendant
Senator Rayner's hypothetical example of a plea in bar sustained after trial had begun—an example accepted without question by Senators Patterson, Nelson, and
The plain fact of the matter is that the majority's post hoc rationalization of the Act simply was not that of Congress. While the debates show considerable disagreement about the meaning of "jeopardy" in the legal sense, there is not the slightest suggestion anywhere in the legislative history that "jeopardy" is being used in any other sense. Even where references occur to the impaneling of the jury as the moment when jeopardy attaches, it is clear that jeopardy is still being used in its legal sense—after all, as the majority itself notes, ante, at 305, the impaneling of the jury does in fact often become the constitutionally relevant point in determining that "legal jeopardy" has attached to prevent a reprosecution. But the one point on which there was unanimous agreement—even from Senator Rayner, see, e. g., 41 Cong. Rec. 2748—about the meaning of "jeopardy," was that where a convicted defendant on his own motion had secured the arrest of a jury's verdict of guilty, he had not been placed in "jeopardy." "[T]he defendant could not complain, either if the judgment of the court shall be entered upon the verdict or a new trial
For this Court to hold that Sisson has been placed in jeopardy under the motion-in-bar provisions, thus defeating jurisdiction, the Court must be prepared to hold that a successful appeal by the Government, resulting in an order that judgment be entered on the verdict, would violate Sisson's double jeopardy protection. Judge Learned Hand refused even to consider such a suggestion in Zisblatt: "So long as the verdict of guilty remains as a datum, the correction of errors of law in attaching the proper legal consequences to it [does] not trench upon the constitutional prohibition." 172 F. 2d, at 743.
I find extremely peculiar the path that the Court follows in reaching its conclusion that we cannot hear this case. The "motion in arrest" provision is confined to its early common-law sense, although there is absolutely no indication that Congress was using the phrase in that sense, and we have never similarly limited the "motion in bar" provision to its common-law scope. The alleged trouble with the "motion in arrest" is not any problem of jeopardy, but the fact that Judge Wyzanski relied on facts outside the face of the "record." Conversely, the trouble with the "motion in bar" provision is not the use of outside facts, but solely the fear that Sisson was "put in jeopardy." If this were a motion in arrest, there would be no "jeopardy" problem; and if this were a motion in bar, resort to outside facts would pose no problem. The apparent inconsistency and the refusal to hear the case appear to be due to a dogged determination to fit Judge Wyzanski's action into one "common-law pigeonhole," United States v. Mersky, 361 U.S. 431, 442 (BRENNAN, J., concurring), or the other
The question in this case should simply be whether or not a judge who upholds a claim of constitutional privilege, thereby declaring the statute unconstitutional as applied, has entered a judgment that Congress intended this Court to be able to review. Surely in a statute as unclear and ambiguous as the majority says this unhappy Act is, the "words" of the statute are only the first place to start the task of interpretation. The primary guide to interpretation should be the statute's purpose, as indicated by the evil that prompted it, and by the legislative history.
The Act was passed to remedy the situation that gave a single district judge the power to defeat any criminal prosecution instituted by the Government, and to annul as unconstitutional, attempts by Congress to reach a defendant's specified conduct through the use of the criminal machinery. Over and over, this theme is repeated in the debates on the bill, dominating every other topic of discussion except the concern for safeguarding the defendant's privilege against double jeopardy. AS THE CHIEF JUSTICE'S opinion details, it is difficult to imagine a case more closely fitting the type of case in which Congress intended to allow an appeal than the instant one.
The majority suggests that we must remember that the Act was "a compromise," and that Congress was very concerned about not unduly encroaching on the rights of the defendant. But the "compromise" between the House and the Senate was only over the areas in which to allow appeal—there was complete accord that constitutional cases of this sort constituted one of those areas; they were indeed the Act's raison d'être. Similarly
The conclusion that Congress intended judgments of this kind to be reviewed seems to me so clear, that I suspect the majority's neglect of this aspect of the statute amounts to a tacit admission that policy and purpose point overwhelmingly toward finding jurisdiction. If that is the case, then to hang Congress on the technical meaning of the obscure legal terms it happened to use is not only inappropriate, but is strangely out of line with decisions that leap over the plain meaning of words in other contexts to reach conclusions claimed to be consistent with an Act's broader purposes. See Welsh v. United States, 398 U.S. 333 (1970); Boys
Admittedly, the issues raised by Sisson are difficult and far-reaching ones, but they should be faced and decided. It is, to be sure, much more comfortable to be able to control the decision whether or not to hear a difficult issue by the use of our discretion to grant certiorari. But that is no excuse for ignoring Congress' clear intent that the Court was to have no choice in deciding whether to hear the issue in a case such as this. The fear expressed in the prevailing opinion that if we accept jurisdiction we shall be "cast adrift" to flounder helplessly, see ante, at 299, has a flavor of nothing so much as the long-discarded philosophy that inspired the old forms of action and that led to the solemn admonition in 1725 that "[W]e must keep up the boundaries of actions, otherwise we shall introduce the utmost confusion." Reynolds v. Clarke, 93 Eng. Rep. 747, 748 (K. B. 1725). I cannot agree. I would find jurisdiction.
" `Wilfully' as used in the indictment means intentionally, deliberately, voluntarily. If the Government proves defendant intentionally refused to comply with an order of his draft board, in accordance with the statute, to submit to induction, it is not open to defendant to offer as an excuse that he regarded the war as illegal, that is, contrary to either domestic Constitutional law or international law . . . . [I]n a prosecution for wilfully refusing to obey an induction order, evidence with respect to belief is admissible only to the extent it bears upon the issue of intent, as distinguished from motive or good faith." 294 F. Supp., at 519.
"The only question which as a matter of law a Jury has a right to consider is whether the defendant if he failed to perform an act required under the statute and regulations was acting knowingly in the sense of with mental awareness, [and] wilfully in the sense of intentionally and with free choice.
"He may have all the views he likes of a political, ethical, religious or legal nature. They may be as reasonable as sometimes dissents of the Supreme Court are reasonable and sometimes the majority Opinions are reasonable, but as long as the law stands as it now stands his motivation, his good faith and the like are not in the least relevant to the question whether he is guilty or not." (App. 193.)
Because we conclude that the District Court's decision was not in fact one arresting judgment, see infra, we have no occasion to decide whether the District Court incorrectly characterized these issues as having been raised by the defendant, and if so, whether the 1966 amendment to Fed. Rule Crim. Proc. 34, requiring that a motion in arrest of judgment be granted "on motion of a defendant," precludes a district court from granting such a motion on an issue not raised by the defendant's motion.
It should be noted that at the conclusion of his opinion, the District Judge stated that he was granting the motion in arrest because "[i]n the words of Rule 34, the indictment of Sisson `does not charge an offense.' " He then stated in conclusory terms that his decision was one " `arresting a judgment of conviction for insufficiency of the indictment . . . [which] is based upon the invalidity. . . of the statute upon which the indictment . . . is founded' " for purposes of 18 U. S. C. § 3731, and that the Government could therefore take a direct appeal to this Court.
The label attached by the District Court to its own opinion does not, of course, decide for us the jurisdictional issue, however. "We must be guided in determining the question of appealability of the trial court's action not by the name the court gave [its decision] but by what in legal effect it actually was," United States v. Waters, 84 U. S. App. D. C. 127, 128, 175 F.2d 340, 341, appeal dismissed on Government's motion, 335 U.S. 869 (1948); United States v. Zisblatt, 172 F.2d 740, 742 (C. A. 2d Cir.), appeal dismissed on Government's motion, 336 U.S. 934 (1949); see United States v. Hark, 320 U.S. 531, 536 (1944); United States v. Blue, 384 U.S. 251, 254 (1966).
"The court on motion of a defendant shall arrest judgment if the indictment or information does not charge an offense or if the court was without jurisdiction of the offense charged. The motion in arrest of judgment shall be made within 7 days after verdict or finding of guilty, or after plea of guilty or nolo contendere, or within such further time as the court may fix during the 7-day period."
"That on or about April 17, 1968, at Boston, in the District of Massachusetts, JOHN HEFFRON SISSON, JR., of Lincoln, in the District of Massachusetts did unlawfully, knowingly and wilfully fail and neglect and refuse to perform a duty required of him under and in the execution of the Military Selective Service Act of 1967 and the rules, regulations and directions duly made pursuant thereto, particularly 32 Code of Federal Regulations 1632.14, in that he did fail and neglect and refuse to comply with an order of his local draft board to submit to induction into the armed forces of the United States; in violation of Title 50, Appendix, United States Code, Section 462."
We think untenable the view of MR. JUSTICE WHITE that under the principles of this opinion today the "Court should not have had jurisdiction in United States v. Covington," 395 U.S. 57 (1969), on the ground that the pretrial dismissal in that case "would amount to an acquittal because the judge might have given the case to the jury under instructions that it should acquit if it found the facts necessary to sustain the defendant's privilege—e. g., that he was not one of the registered marihuana dealers whose conduct was legal under state law," post, at 327 (emphasis in original). As we note, infra, n. 56, what the District Court did do in Covington was to dismiss an indictment before trial without any evidentiary hearing. Moreover, in disposing of the Government's contentions on the merits, this Court held that there was no need in that case for a pretrial evidentiary hearing on the defendant's motion to dismiss (much less a need to submit any factual issue to a jury) because (1) "there is no possibility of any factual dispute with regard to the hazard of incrimination"; and (2) "the Government [had] never alleged the existence of a factual controversy" concerning appellee's nonwaiver of his privilege against self-incrimination, 395 U. S., at 61.
"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."
The statute goes on to provide for (1) Government appeals to the courts of appeals for all other decisions (a) setting aside or dismissing indictments, or (b) arresting judgments; (c) granting a pretrial suppression motion; (2) release on bail; (3) transfer of cases from this Court to a court of appeals or vice versa when an appeal has erroneously been taken to the wrong court.
". . . That a writ of error may be taken by and on behalf of the United States from the district or circuit courts direct to the Supreme Court of the United States in all criminal cases, in the following instances, to wit:
"From a decision or judgment quashing, setting aside, or sustaining a demurrer to, any indictment, or any count thereof, where such decision or judgment is based upon the invalidity, or construction of the statute upon which the indictment is founded.
"From a decision arresting a judgment of conviction for insufficiency of the indictment, where such decision is based upon the invalidity or construction of the statute upon which the indictment is founded.
"From the decision or judgment sustaining a special plea in bar, when the defendant has not been put in jeopardy."
A 1942 amendment did increase this Court's jurisdiction under the Act by including cases involving informations as well as indictments, 56 Stat. 271. Other amendments have (1) abolished review by writ of error and substituted the right of appeal, 45 Stat. 54 (1928); (2) given the courts of appeals jurisdiction for appeals from decisions in the same common-law categories as those originally provided, but which do not involve the construction or validity of the underlying statute, 56 Stat. 271.
In Covington, the District Court, before trial without any evidentiary hearing, dismissed an indictment bottomed on the Marihuana Tax Act, 26 U. S. C. § 4744 (a) (1), on the ground that the "privilege against self-incrimination necessarily would provide a complete defense to the prosecution," id., at 58. The Government appealed, claiming the Court had jurisdiction under both the dismissal and the motion-in-bar provisions of § 3731. The Court found jurisdiction in the alternative under either provision. The only discussion of the motion-in-bar jurisdictional issue, found in a footnote, was as follows: "If the dismissal rested on the ground that the Fifth Amendment privilege would be a defense, then the decision was one `sustaining a motion in bar.' See United States v. Murdock, 284 U.S. 141 (1931)," 395 U. S., at 59 n. 2.
Having thus disposed of the jurisdictional issue, the Court proceeded to the merits of the Government's appeal and, inter alia, considered "whether such a plea of the privilege [against self-incrimination] may ever justify dismissal of an indictment, and if so whether this is such an instance," id., at 60. In this context the Court said:
"Federal Rule of Criminal Procedure 12 (b) (1) states that: `Any defense or objection which is capable of determination without the trial of the general issue may be raised before trial by motion.' A defense is thus `capable of determination' if trial of the facts surrounding the commission of the alleged offense would be of no assistance in determining the validity of the defense. Rule 12 (b) (4) allows the District Court in its discretion to postpone determination of the motion to trial, and permits factual hearings prior to trial if necessary to resolve issues of fact peculiar to the motion." Id., at 60.
Taken in full context, the quotation used by MR. JUSTICE WHITE, post, at 332, plainly had reference to a district court's power under Fed. Rule Crim. Proc. 12 to dismiss an indictment, and nothing whatsoever to do with the quite distinct issue of the scope of the jurisdictional provisions of § 3731.
That the Court was there concerned with only the merits of appeal is clear from what follows. After suggesting that in most circumstances a motion to dismiss an indictment brought under 26 U. S. C. § 4744 would not require any factual inquiry, the Court stated that once a defendant asserted his privilege a trial court should dismiss the indictment without an evidentiary hearing "unless the Government can rebut the presumption [of nonwaiver of the privilege] by showing a need for further factual inquiries." Id., at 61. In applying that principle to the merits of the case before it, the Court affirmed the District Court's action below because: (1) "there [was] no possibility of any factual dispute with regard to the hazard of incrimination"; and (2) "the Government has never alleged the existence of a factual controversy" concerning the issue of whether "appellee [had] waived his privilege." Ibid.
The Court in Covington did not say that a defense based on the privilege against self-incrimination where there were facts in dispute could, in all cases, be decided without consideration of the general issue. And, more importantly for present purposes, nowhere does the opinion in Covington even hint that a dismissal requiring a pretrial evidentiary hearing, or a dismissal motion properly deferred to the trial of the general issue would be appealable under the motion-in-bar provision of the Criminal Appeals Act. The Court in Covington had no such jurisdictional issues before it, and the opinion does not discuss such issues.
See 41 Cong. Rec. 2191 (Sen. Nelson) ("I wish to say further that where a jury has been impaneled and where the defendant has been tried an appeal does not lie"), id., at 2748 (Sen. Patterson) ("[A] motion in arrest of judgment . . . is the only one of the three cases in which there can have been a trial . . . . [I]n the other two cases . . . the motions must ex necessitati be made before jeopardy attaches"); id., at 2752 (Sen. Patterson) ("These proceedings are all defendant's acts before a verdict to prevent a trial, except the motion in arrest of judgment, which is defendant's act after a verdict against him to defeat a judgment on the verdict") (emphasis supplied).
Without explaining his inconsistency, Senator Patterson later expressed the view that under the proposed bill the Government would have been able to appeal the decision in the famed Chicago Beef Trust Case because the jury's verdict was based on the "special plea in bar filed" in that case, not on the defendants' guilt or innocence, id., at 2753. Underlying this conclusion—later disputed by Senator Nelson, see id., at 2757—was Patterson's expectation that "in the case of a special plea in bar that went against the Government the defendant had not been in jeopardy on the merits of the case," id., at 2753 (emphasis supplied). Unlike the defendants in the Beef Trust Case—who Patterson understood not to have been tried on the general issue of their guilt or innocence—plainly Sisson has been put "in jeopardy on the merits of the case." Our Brother WHITE admits as much, by suggesting he could not be retried. Therefore, even under Patterson's broader reading of the statute, an appeal would not lie in this case.
The provision granting an appeal from a decision dismissing or setting aside an indictment does not contain a similar phrase limiting appeals to cases where the defendant has not yet been put in jeopardy, but we agree with the conclusion reached by the Government that the same limitation applies. See n. 57, supra.
Rule 34 provides: "The court on motion of a defendant shall arrest judgment if the indictment or information does not charge an offense or if the court was without jurisdiction of the offense charged. The motion in arrest of judgment shall be made within 7 days after verdict or finding of guilty, or after plea of guilty or nolo contendere, or within such further time as the court may fix during the 7-day period."
Halseth and Fruehauf are inconclusive authorities on the issue of whether a stipulation can supplement an indictment and generate a basis for review under § 3731. While the majority recognizes that the issue has not been resolved, and although it purports not to resolve it here, it does rely on United States v. Norris, 281 U.S. 619 (1930), and a policy of construing the Criminal Appeals Act narrowly to express doubt that the Solicitor General's argument should be accepted.
Norris, however, is not a persuasive precedent. There the defendant was permitted to enter a plea of nolo contendere to the charge contained in the indictment. When he appeared for sentencing, a stipulation of facts was filed, and he then submitted a motion for arrest of judgment which relied on the stipulation. The District Court denied the motion but the Court of Appeals reversed, concluding that the indictment was insufficient in light of the stipulation. This Court in turn reversed the Court of Appeals, holding that after pleading guilty, a defendant may not then stipulate facts to test the constitutionality of his conviction. There was no suggestion that an appeal would not lie where a statute was held unconstitutional as applied to stipulated facts. Indeed, the Court's opinion seems at one point to suggest that if the defendant had withdrawn his plea, and then questioned the constitutionality of his conviction on stipulated facts, the question would have been open to consideration. 281 U. S., at 623.
Further, the majority's ultimate conclusions about the Act necessarily lead it into uncomfortable distinctions. For if the Government or the parties want a constitutional ruling about the applicability of a statute to a particular set of facts, it is only necessary to set out those facts as a part of the indictment or information.
The majority's protest that its conclusion does not rest on "what might have happened," ante, at 290 n. 19, simply serves to highlight the ipse dixit nature of its opinion. For the plain fact is that no other reason is ever given to explain why Judge Wyzanski's action amounted to a post-verdict directed acquittal. The question in this case is whether an affirmative defense, relying on facts developed at trial and sustained by the trial judge after a jury verdict of guilty, can amount to an appealable "motion in bar." It is no answer to this question simply to repeat that this is a case in which Judge Wyzanski after a verdict of guilty sustained Sisson's defense on facts developed at the trial—a clearer case of question-begging can hardly be imagined. Such a simple restatement only poses the question that is to be decided: does such action amount to a nonappealable "acquittal" and, if so, why?
One answer to this question is suggested by the majority in its citation to United States v. Ball, ante, at 289-290. An acquittal is the type of judgment that cannot be reviewed without putting the defendant twice in jeopardy for the same offense in violation of the Constitution. Indeed, the legislative history shows that Congress was well aware of the Ball decision, and strongly suggests that Congress thought that nonappealable "acquittals" were only those in which review was incompatible with the double jeopardy provisions of the Fifth Amendment. See, e. g., 41 Cong. Rec. 2193. But despite the citation, I cannot believe that the majority really means to suggest that Congress could not constitutionally authorize an appeal in a case precisely parallel to this one in accordance with currently sought legislation. That would indeed be throwing the baby out with the bathwater in order to declare this case an "acquittal" and thus avoid being forced to reach the merits now.
What other reason is there for deciding that this is a case of "acquittal"? One obvious suggestion is that the question of whether a judge's action amounts to an "acquittal" admits of no single answer, but depends on the reasons for making the inquiry in the first place. Here the inquiry is whether Congress meant to allow an appeal where a statute had been held invalid as applied to a class within its reach and where the defendant's constitutional jeopardy interests are in no way threatened by the appeal. The majority's absolute refusal to discuss or respond to the legislative history on this question, set out below, see infra, at 335-346, indicates that this approach would also lead to the conclusion that Judge Wyzanski granted an appealable "motion in bar" rather than an "acquittal."
The only other noncircular answer that I can find in the majority's opinion is that this is an acquittal because the judge "might have" sent the case to the jury under his novel instructions, resulting in a verdict of not guilty, from which an appeal would indeed jeopardize the defendant's constitutional interests. That answer, as the majority's discomfiture indicates, is not a very good one.
The legislative history makes clear that trying facts that go to the plea, as opposed to facts that go to the "general issue" in the sense just described (whether the defendant committed the act) results in an appealable motion in bar as long as the defendant has not been "put in jeopardy." Compare 41 Cong. Rec. 2750 (remarks of Senator Nelson), with id., at 2753 (remarks of Senator Patterson). See text, infra, at 340-341. The reason for the distinction appears to be the wholly sensible one of not permitting appeals that might involve overturning the findings of the trier of fact— whether it be judge or jury. Nobody suggests in this case that Judge Wyzanski's findings as to Sisson's sincerity are reviewable; the only question is whether those findings are legally relevant. While I can sympathize with the majority's concern to distinguish Covington, I do not see the relevance of the purported distinction, see ante, at 302-303, n. 56. There, as here, the trial judge explicitly refused to declare the relevant Act unconstitutional on its face and necessarily rested his action on factual findings concerning the particular defendant, see 282 F.Supp. 886, 889-890. In fact, under the majority's reasoning, it would have been even easier to argue in Covington that the facts needed to prove the constitutional defense were part of the "general issue," since proof at a trial on the merits would necessarily have involved developing such things as defendant's status as a marihuana dealer. The majority suggests that there the Government conceded the relevant facts, whereas here they were contested. While that suggestion is itself highly dubious, see THE CHIEF JUSTICE'S opinion, ante, at 312, until the majority explains how that distinction is at all relevant, reiterating the distinction again only begs the issue posed by this case. See n. 5, supra. For whether the issue was conceded or contested it remains true under the majority's analysis that Covington cannot be distinguished from a directed acquittal "entered on the ground that the Government did not present evidence sufficient to prove that [Covington] was [not faced with a substantial possibility of incrimination]." Majority opinion, ante, at 299.
On the third day of debate, the amendment was agreed to, modified to read:
"Provided, That if upon appeal or writ of error 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." 41 Cong. Rec. 2819.
Senator Rayner's earlier opponents continued to insist that no material change had been made by the amendment, since as they had argued, there would be no appeal in any event where the defendant had received a "verdict" in his favor, see opinion of THE CHIEF JUSTICE, ante, p. 308, as opposed to securing a favorable "judgment" by the trial court's action in sustaining his plea or arresting judgment. See 41 Cong. Rec. 2820. Without explanation, the Conference Committee changed the amendment to read:
"Provided, That no writ of error shall be taken by or allowed the United States in any case where there has been a verdict in favor of the defendant."
Subsequent amendments to the Act omitted the proviso altogether (which no longer appears in the current version) thus vindicating the arguments of Senator Rayner's opponents that the amendment had no substantive effect.