*2 BELL, Before THORNBERRY GEE, Judges. Circuit *3 THORNBERRY, Judge: Circuit Presented for in decision § question expressly appeal is open left in its recent dou jeopardy trilogy. ass Serf v. Unit States, 1975, ed 43 L.Ed.2d the Court declined to “intimate concerning view put by General, case of ‘a Solicitor opportuni defendant who is afforded an ty to obtain a determination of a legal prior defense to the trial and neverthe knowingly less allows himself to be placed in jeopardy raising the de ” fense.’ 1065, 43 L.Ed.2d at 277. In this case we conclude, first, that Kehoe and Bullock placed jeop allowed themselves to be reasons, second, ardy for tactical they that because of their decision are entitled to protection claim the clause. Accordingly, jurisdiction assume appeal judgment reverse of the district court.

I. January 18, grand On jury appellees named in an eleven-count in charging dictment a number of persons participation alleged with in an loan May kickback scheme. On 1973 a superseding eleven-count indictment was grand jury. handed down This Anthony Farris, Atty., J. P. U. S. Hen- indictment, as the one well as Novak, Jr., J. ry Gough, James R. Asst. superseded, alleged violations of 18 Attys., Houston, Tex., U. S. plaintiff- May 14, 1006.1 Also U.S.C. on how § appellant. ever, Kehoe and Bullock alone were Hall, Robert Tex., A. Houston, for Ke- charged in single count hoe. embezzling with certain land from a sav Richard Haynes, Randy Schaffer, ings association in violation of 18 U.S.C. Houston, Tex., for Bullock. Appellees pleaded guilty 657.2 illegal 1. Section 1006 making provides: renders 2. Section 657 of, false entries the records or the mis- handling property of, Whoever, officer, agent certain or enumerat- em- institutions, credit ed federal any capacity with ployee the intent to of or connected defraud the United States. Corporation, the Reconstruction Finance dismissed contention charge, the embezzlement and on Octo ble indictment. empanelled ber second ruling. began. appeal After seeks now had States case-in-ehief, presented its appellees may appeal an “judgment for a acquittal” moved case a criminal adverse ground, alia, inter the indict by statute. authorized when failed charge “to an offense Sanges, against the laws of the United States of 445. 18 U.S.C. 609, 36 L.Ed. America since real property cannot be that: provides subject of an embezzlement under by the criminal In a provisions of Title to a court lie shall Code, Section 657.” In memorandum decision, judgment, appeals opinion reviewing permissible reach *4 dismissing an a district of order Judge of § Bue announced his deci information or indictment grant appellees’ sion motion “on the lie where no shall except grounds that the indictment failed to the jeopardy clause of double state an offense the United prohibits Constitution States Shortly of America.”3 thereafter prosecution. further government procured a new indict against appellees second Judge for the dismissed same Seals Here subject that after felt pre transaction made of the he because indictment; time, indict the first ruling on vious Judge Bue’s charged barred grand jury jeopardy clause ment, Kehoe and Bull double Hence, resolu our a violation of 18 ock with U.S.C. prosecution. further will issue promptly moved Appellees indictment, to dismiss double of the tion ques arguing, alia, jurisdictional inter not control With that Judge acquitted Bue had well.4 them in the merits but tion on issue trial and that to the main mind, earlier a second proceed trial aris clause out the same transaction Does would appeal: prose put jeopardy. them twice from further After a bar cuting hearing, Judge Seals sustained the Bullock? dou- Kehoe $5,000 Corporation, Deposit imprisoned Insurance Na- than or Federal not more than Administration, years, both; five Union Home Credit or tional if the amount or Corporation, embezzled, abstracted, Farm Credit Ad- purloined Loan value Owners’ or ministration, Department Housing misapplied $100, does not exceed he shall be Crop Development, $1,000 Federal Insurance not imprisoned fined more Urban than or Corporation, Corporation, year, Farmers’ Home more than one or both. acting Secretary Agriculture through Administration, any or Home the Farmers’ of this The correctness bank, bank, intermediate credit bank land us. any lending, mortgage, cooperatives or for insurance, corpo- savings posture present credit or and loan its case is in because the 4. The acting Judge government, appealing or authorized or association rather than ration any appellees ruling, or laws of to reindict Bue’s chose under under Hence, of which are insured the accounts the constitutional a different statute. institution Savings jeopardy question and Loan Insurance that we would have Federal jurisdictional Judge Corporation or Administrator matter had addressed as Administration, appealed Union or instead Credit Bue’s order been National any company, Judge argument presented business investment Seals as an small whoever, being dismissing receiver such insti- the second indict- the merits receiver, Nevertheless, tution, employee Judge judg- agent or or even Seals’ ment. abstracts, willfully embezzles, purloins appealable or if “the double ment would not be funds, credits, any moneys, misapplies secu- of the United States Constitu- clause prosecution” things belonging prohibits of Kehoe of value tion or other rities Hence, institution, pledged otherwise in- in this situation the mer- or and Bullock. such care, question merge. jurisdictional be fined not more its shall its and trusted reading A II. of Judge opinion Bue’s re- veals except perhaps for one brief expressly Bue denominated passage he was clearly discussing only acquittal, judgment an rather his than sufficiency of the indictment the indictment. Neverthe- dismissal and not the facts of the case before him. course, less, is, although settled “[i]t Hence, appellees’ argument point on this ... that ‘a verdict entirely on ambiguous turns one state- subsequent prosecution a bar to a for the below; ment, quoted . . . word same offense.’ quittal] [t]he [ac- This Court was aware of and con- . . . has talismanic cerned the fine distinctions purposes of the qualities for Double made when the motion for Clause.” Serfass Jeopardy of acquittal urged by defendants States, supra, S.Ct. at at the close of the Government’s case. short, at 276. as the L.Ed.2d Had the evidence shown that prop- noted in a related con- erty was sold and for the benefit of text, judge’s “the characterization Surety Savings with the defendants in action cannot control the of his own clas- fiduciary capacities their diverting the the action for sification consideration of such sale for their jurisdiction.” appellate our benefit, own an indictment alleging Jorn, 1971, might embezzlement However, have been proper. n.7, n.7, *5 the circumstances of this 552 n.7. It follows that must exam- case, accepted purposes as true for Judge ruling ine Bue’s and properly motion, showed that the alleged it purposes characterize for of the double consideration never was to intended jeopardy clause. Surety flow to only to the defend- Although ants. the defendants osten- Kehoe Bullock were of course sibly deprived Surety Savings of real acquitted general on the issue holdings, funds, estate credits or jury. primary The factfinder made no securities belonging Surety to were guilt determination their or innocence. taken. While this distinction is a fine circumstances, however, In certain one, it is one that is critical to the even in jury may trial trial find offense embezzlement. will, by in a that facts manner doctrine estoppel, similar to collateral act as an App. at 265. Appellees apparently con- Thus, acquittal.5 if Judge Bue based his Judge that that, tend Bue found if other ruling upon facts that went to gen introduced, evidence had been prose- case, eral issue of Kehoe and Bullock cution could have obtained a conviction substance, name, were as well as in under the stood, indictment it as then acquitted. constitutional rule despite fact alleged that it embezzle- against prosecution further after an ac ment of property. real quittal then play would come into pre to argues, hand, on the other that pas- vent assuming jurisdiction.6 us from sage simply hypothetical situation Sisson, 267, n.18) judge’s 624 & 399 U.S. L.Ed.2d at the trial v. 90 States 5. United 608; posed 2117, case 26 United a constitutional L.Ed.2d States v. bar S.Ct. n.7, proceedings supra, to further trial Jorn, 91 S.Ct. at 400 U.S. at 478 Note, 350-351, n.7, See Sisson. at L.Ed.2d at 552 n.7. 95 553 27 S.Ct. at 1025- 26, Appeals 43 L.Ed.2d at in Crimi- of “Dismissals” Government (1974). Cases, 87 Harv.L.Rev. 1822 nal Wilson; 6. This case like Sisson re- Although appeal appelles’ on would .mean that versal v, Wilson, 332, 1013, 420 go Thus, States U.S. 95 could S.Ct. second trial forward. if statutory 43 acquittal, L.Ed.2d 232 read Sisson aas rath- Bue’s the double purposes er than a prohibit constitutional decision for pro- clause would reviewability appeal, Bullock, ceedings against on Wilson noted and Kehoe and see note approved apparently suggestion (399 supra, required Sisson’s and we would 5 be to dismiss n.18, n.18, U.S. at 290 & appeal. 90 S.Ct. at 2129 & 26

83 judge in by the trial which the posited grounds speedy indictment on have in- properly could been defendants jury guilty found Wilson after converting We think under 18 U.S.C. 657. dicted funds to his own union use. essentially cor- Sisson, v. on United States Relying rect. Appeals rebuffed supra, the Court attempt appeal to government’s rul- First, it is doubtful whether the Supreme Court reversed. ing. The Jus- fact; findings judge intended make carefully the leg- reviewed Marshall tice clearly that certain facts will he states 3731 new history islative simply “accepted be true for “Congress was deter- concluded Second, Judge Bue con of this motion.” creating to avoid nonconstitution- mined alleging that “an cluded right ap- the Government’s al bars might proper,” have been embezzlement 1019, at 339, 420 95 S.Ct. peal.” U.S. alleging not that an indictment em Proceeding at 239. 43 L.Ed.2d then to permissible. might be bezzlement of land scope dou- examination Therefore, even if he did intend in this clause, the Court isolated findings, formal the re passage to make against multiple prohibition trials “the sulting necessary were not comments controlling princi- constitutional as the ground granting appellees’ the stated 346, 1023, 420 U.S.' at 95 ple.” e., that the indictment motion—i. 43 L.Ed.2d 243. Since fáiled to state an offense—and question on would reversal result findings do not constitute of fact thus reinstatement of the only in verdict binding this court. Compare trial, ain new the court and not conclud- Esposito, 492 F.2d Cir. clause ed that would cert. denied by permitting the ap- offended not be (1974),7 with peal. Sorenson, Cir. Jaramillo, United States v. 8 Cir. Jenkins, In United States v. F.2d 808. In these circum 1975, *6 ruling Bue’s can stances be 250, the L.Ed.2d defendant was indicted purely legal as hence characterized refusing knowingly to submit to in- for —and acquittal. an There was conclu armed forces. into the After a duction guilt. or Consequent on innocence sion bench trial the “dismissed the in- forbidding pro rule further ly, since the the because Board had—erro- dictment” ceedings is inapplica after then-existing law— neously under here, must now consider Jenkins’ “late-ripen- to entertain refused jeopardy prohibits clause fur objector ing” claim to conscientious sta- prosecution pro of defendants ther who government sought The to tus. the mid-trial dismissal the indict cure ruling, claiming the that district ground it fails on the that to state refusing give erred in to judge retroac- an offense. Supreme tive effect to a Court decision legitimated the Board’s refusal but III. was handed after which down Jenkins Supreme The of Ap- recent Court double induction. Court The declined triology supply jurisdiction, does not a di- peals dismissed for lack of jeopardy Wilson, Supreme In United Court affirmed. answer. the The rect and had characterized the Circuit dis- Second judge the judgment acquittal. dismissed L.Ed.2d court’s trict order, though in the was alluded to of no that the court clear from the order is “[I]t prose- significance the the actual basis for deci- defect the fatal concluded upon The order neither based nor sion. lay to state in the indictment’s failure cution application require facts of to the nexus limited failure statute’s and the therefore, Appeal, by justi- case. is not barred which commerce would interstate pros- jeopardy fact that the clause of the fiñh regulation. double amend- fy federal connection, prove added). (emphasis such ment" failed ecution sure, Supreme Court was less objector status. The Appeals Court of difficulty noted in bench trials decided that ap could determining judgment whether a dis- peal this order and reversed on the mer charging the defendant upon rested fac- Supreme affirmed, its. The ing hold legal grounds. Nevertheless, or tual that since Serfass had never waived reasonably Court was certain that trial, right his the district trial judge had not found all factual is- ruling had made his before Serfass against Thus, sues the defendant. placed had been jeopardy and hence Wilson, them was not like double clause had no appli where reversal and remand would lead significant Most present cation. for pur only to reinstatement of guilty verdict. poses, Court reserved two deciding questions necessary to decision of the clause would forbid further proceedings (1) case before it: “whether a similar against Jenkins the Court actually articulated the one made in [to Ser this standard: district court after fass] appeala had attached would have been Here there was a judgment discharg- ble,” (emphasis added), (2) defendant, ing although we cannot appeal would be barred from a mid-trial say was, with assurance whether it ruling discharging the defendant aon not, a resolution of the factual legal ground that could have been raised

issues the Government. But it defendant before trial. 420 enough of the Double Clause, Jeopardy and therefore for the implication 277—78. The these determination appealability under might open important, be issues is be 18 U.S.C. proceed- further hypothetical cause both cases seem to ings sort, of some devoted to the reso- directly fall within the Jenkins rule. If lution of factual going issues to the bar to proceedings further elements of the offense charged, by the raised defendant after jeopardy required would have been upon rever- attached, a judgment sustaining has sal and remand. objection would result in the defendant’s 420 U.S. at 369, 95 S.Ct. at discharge, upon reversal and remand L.Ed.2d at 259. glance At first inquiries perforce new factual would be broad rule stated here would appear to made. Yet the Court treated require present dismissal appeal. hypothetical the Serfass as controver We have before us a discharg day sies for another and not as cases defendants, reversed, it is if clearly controlled Jenkins. Conse proceedings devoted to resolution *7 quently, it likely seems that the Court going factual issues to the elements intended Jenkins to be limited to its of the offense charged will be necess facts: a by bench trial terminated a rul Nonetheless, ary.8 the final case of the may that —since have been one jeopardy trilogy strongly implies fact—must be treated as an for that the Jenkins is standard not as purposes of the double jeopardy clause.9 sweeping appears. as it first Thus, Supreme none of the recent States, v. supra, In Serfass United the cases controls here. granted district court the defendant’s pre-trial motion to dismiss the indict- Accordingly, we must make an on legal ground ment the independent that the Selec- analysis of whether the dou tive Service Board had erred in jeopardy its han- prohibits clause further pro dling ceedings Serfass’s claim to conscientious against appellees. Double jeop- jeopardy 8. For of the double clause it the setting; same factual all that changed has significance appellees origi-’ prosecution’s is of that were is the theory. nally indicted under 18 657 and are U.S.C. Means, under indictment for violation of 18 now 9. But see 1975, United States v. 8 Cir. out of arise indictments 513 F.2d 1329. Both U.S.C. play first into ardy considerations come sworn empanelled been but be had attaches; jury trial taken, when testimony had been that fore jury when the is em occurs attachment ju an the indictment contained incurable v. United panelled sworn. Serf ass Distinguishing, inter defect. risdictional States, supra, 388, 95 S.Ct. at U.S. alia, earlier defective indictment an 1062, at 274. In at first the basis that there the on case10 clearly attached: the case of acquit verdict trial had resulted judge on indictment at trial ruled the jury, the Court held tal government’s case-in- the close of the a mistrial im “where the declaration Nevertheless, chief. “the conclusion policy and state plements reasonable begins, jeopardy has attached rather at best would proceeding that aborts a ends, inquiry as to than produced that could have a verdict have Jeopardy bars Double Clause retrial.” parties, upset at will one been Somerville, 1973, 458, v. Illinois U.S. proceeding to interest in the defendant’s 467, 1066, 1072, 425, 93 S.Ct. 35 L.Ed.2d outweighed by competing verdict is 433, States, quoted in ass v. United Serf public for equally legitimate demand Sisson, supra. See also United v. States at justice.” 410 U.S. at 303, 2137, supra, 399 at at 1074, Despite L.Ed.2d at 435. 631; v. 26 L.Ed.2d at cora, Pe States terminology different used to abort the n.7; 3 Cir. F.2d tri first trial in Somerville and first Note, supra course, note at 1836. Of here, the effect was the same—the al attached, once has of the indictment and the dismissal is, may be, “acquittal that either prosecution bringing of a -new —and proceedings. on merits” bars further interest-balancing ap believe Supreme already weighed Court has ap case is employed in that proach various considerations raised in this propriate in one.11 See United the side context and come down on Mayes, 6 Cir. Wilson, defendant. 52; Comment, Jeopardy Double 651 — supra, at Appeals Criminal and Government determined, 43 L.Ed.2d at 246. We have Dismissals, n. 52 Texas L.Rev. 342 & Bue’s in this Note, supra note 1838-40. cf. acquittal. What we make Two factors this case decide, then, judg must stronger than defendants Somer discharging the defendant after First, ville. Kehoe Bullock sat ground attached jeopardy has through trial, day a full which the incurably defec presented prosecution its evidence poses tive the same constitutional obsta Second, against judge them. supplied to a second trial that is cle acquittal, termed his decision an rather apparent acquittal. an actual anor dismissal, than a mistrial or a and the Court case most reasonably defendants could have be nearly resembling this one is Illinois v. lieved that was barred Somerville, supra. In Somerville the tri them; proceeding al had declared a mistrial when possible psychological shock of prosecution discovered, after the jury is not reindicted immaterial tradition- *8 proceedings importance in Ball, critical 163 U.S. v. 10. they mistrial as in a court terminate the trial 300. 41 L.Ed. cases, or in the line did in the Somerville favor, Jenkins, supra, they Su- defendant’s did here.” v. In States United 11. n.7, n.7, disapproved the expressly rea- at 365 95 S.Ct. at 1010 preme L.Ed.2d at context, plain that seems in dissenting Read n.7. soning in the Court only language Somerville-type refers to cases where this argued bal- Appeals, who been, was, may acquitted or have where the defendant ancing appropriate in even cases already acquitted: disagree We decided merits. have on the “We been defendant has analysis ours is not such case. it is of we think because this with reversed the case is jeopardy al remand double considerations. What proceedings for consistent with controlling we think ed this jeopardy double opinion.13 purposes, is the manner in this strong

which case is less for the Reversed and remanded. defendants than In the lat Somerville. objected ter case the defendant strenu BELL, Judge (dissenting): Circuit ously to the termination of the first tri Being of view jeopardy at- Here, hand, al. on the other the defend by judgment tached virtue of ac- challenged ants themselves the indict quittal prior entered in the trial of de- ment, after had been fendants, 12(b)(2), and that Rule F.R. government sworn and the present Crim.P., prevents defendants from argument ed At its case-in-chief. oral claiming barred jeopardy double appellees counsel for stated that he wait delay because of indictment, challenging their in acquittal” make ed to his “motion for govern- I would dismiss the he an opportunity because wanted to appeal. ment’s respectfully I therefore government’s view the evidence. We be dissent. lieve that a defendant who for reasons Defendants-appellees Kehoe and Bull- delays of trial tactics until mid-trial were in ock indicted under challenge to the indictment that could C.A. 657 embezzling § for the offense of have been made before the trial —and property. proceeded real to tri- jeopardy has attached —is not en al government’s the close of the to titled protection claim the of the dou case-in-chief both defendants moved for jeopardy objections clause when his judgment under Rule 29 to the indictment are Cf. sustained.12 grounds, F.R.Crim.P. on several one be- Serfass, supra, States v. ing that the indictment to charge failed 43 L.Ed.2d S.Ct. at argued They offense. prop- that real Jenkins, Cir. 277 — erty could not be embezzled and that no 880. The Senate Re any property case of embezzlement of port on the bill to amend § old had been govern- established that Congress reveals believed that the ment’s evidence. district court double clause would not bar motion, granted agreeing this with de- proceedings in type this of case. points. fendants both S.Rep. Sess., No. 91st Cong., 2d 91— (1970). 8—12 See A second indictment was then obtain- Wilson, fact, supra. the old statute’s charging ed same these defendants with permit failure fraudulently receiving the benefits of a like appears cases prominently federally one savings insured association Report in the as a reason for amend transaction in violation of 18 U.S.C.A. flexible, ment. Under the interest-bal 1006. This indictment related to ancing approach of Illinois v. alleged Somerville same criminal misconduct that the previously dismissed, think clause indictment and the further proceedings does against appellees; forbid been evidence have offered was also

the new 3731 thus the same. Defendants moved to dismiss achieves one of purposes. its intended grounds this second indictment on the Accordingly, prior the district had attached in the quences 12(b)(2) is not violated to the decision to withhold motion Fed.R.Crim.P. states, pertinent holding. until the middle of the That rule trial. jurisdiction the failure or part: “Lack of charge appellees’ offense There is no merit information additional pattern dur- time court at contention be- noticed be shall proceeding.” Al- havior toward pendency them constitutes bad faith proce- process the threat of harassment violation the due removes though rule jurisdictional de- McGough, regard clause. See United States v. 5 Cir. waiver dural *9 598, prohibit courts purport fenses, 603-05. it does conse- attaching unfavorable other

87 proceeding. This motion granted was embezzlement might proper. have been government and the now appeals. However, the circumstances of this case, accepted as true for that contends The motion, showed that the alleged pro- in judgment acquittal the first consideration never was intended to was ceeding in fact dismissal Surety flow but defend- charge an of- failure to indictment Although ants. the defendants osten- district argued It that is fense. deprived sibly Savings Surety of real did not reach the merits court funds, holdings, estate no credits or in de- case, was no verdict that there securities belonging to Surety were favor, that therefore fendants’ taken. While this distinction is a fine substance I find no jeopardy attached. one, is one it is critical to the appears that It in these contentions. offense of (Empha- “embezzlement.” the evidence court did consider district added) sis beyond went presented and therefore appears Thus it that the ruling. court found in its face of that the put had not on suf- Supreme Court Recent United States evidence ficient to sustain a conviction principles make it clear decisions of embezzlement since embezzlement subsequent reprose jeopardy bar could not be of real property and the de terminated in cution once a case has government failed that any per- to show upon con favor based factual fendant’s property sonal had been taken in the in the indictment found clusions transaction. upon at trial. evidence adduced instead Jenkins, supra, controlling where, is Jenkins, 1974, as States v. here, facts adduced after U.S. defendants S.Ct. L.Ed.2d 250. put were on trial States, before a trier of facts v. United See Serfass were considered dismissing in S.Ct. indict^ 369-370, ment. 420 Wilson, U.S. at S.Ct. L.Ed.2d 1006, 43 Jeopardy L.Ed.2d at 259. 332, 95 at taches, Serfass, according to when a de question then is L.Ed.2d 232. The first put fendant is to trial before the trier of on such the trial court relied 389-393, the facts. 420 in The dis evidence its determination. rule, 43 L.Ed.2d at 274. This proceeding an ac court in the second trict cording Jenkins, includes a where question swered affirmative an indictment utilizing is dismissed agree. and I developed facts in that trial in connec language The of the court critical with the although tion dismissal the trial as proceeding the first is follows: point did not reach verdict This Court was aware and con- 369-370, judgment. 420 atU.S. with the fine distinctions cerned at 259. Such facts when the motion for made were utilized here.1 urged by defendants case. close of the Government’s opinion at the prepared by Thorn- prop- perceive it, recognizes shown Had evidence as I berry, more, and for the benefit erty Jenkins, sold would control the without Surety Savings the defendants af- disposition require of this diverting the capacities avoided, however, fiduciary their firmance. Jenkins their of such sale for consideration by deciding applying the reserved benefit, alleging Serfass, an indictment own thus hypothetical of necessitat- retrial held in Jenkins appeal, present al. and the Jenkins In both place posture would in such judge defendant terminated the district unclear posture of jeopardy. I see twice him upon conclu factual or based the trial re requiring identical present case as ap cases, In both sions. part upon sult. facts least parently relied thereupon tri developed, concluded *10 prosecution' balancing a with the prohibited by test result of is estopping asserting jeopardy defendants from a The question clause. saved went jeopardy approach, only not, double This to defense. this and majori- as the ty my judgment, opinion does, in misconstrues the re- the delay being a bar Serfass, question of a jeopardy served in decides it in- defense itself. construed, correctly as denies con- Supreme Whatever the meant Court right delay in the stitutional because question, of the do by its reservation I 12(b)(2). face Rule creating problem as not understand it The issue whether defendants then is have, effect, case. enter We claiming are from jeopar barred double appeal tained to determine dy they under the circumstances because jurisdiction we have under 18 U.S.C.A. challenge could have but in did provides 3731. that no Section § govern dictment until close of the appeal jeopar shall lie where the double They ment’s case-in-chief. could have dy prohibits Constitution clause of the questioned the indictment before trial prosecution.4 govern further What the charge motion to dismiss for failure to appealed question has in fact is the 12(b)(2).2 an Rule offense under jeopardy had attached. Thus rule, however, provides same such we are position having take may failure be noticed court jurisdiction appeal to determine if the any time. chose to Defendants wait un By analogy, will way lie. cf. Bell government’s til the close of the case-in- Hood, 678, 327 U.S. chief to make their motion and the court L.Ed. which teaches that are there point, took notice of At that it. jurisdiction cases where must be exer sufficiency of the evidence was drawn ju purpose determining cised for the with respect validity into issue to the risdiction. This such a case. If the indictment. the district found no error in court’s con Serfass, supra, In jeopardy attached, clusion that question saved the of the appeal would follow that be would appeal by being right denied a the dismissed than rather affirmed. This defendant, although strategy of a af precise procedure followed prior opportunity forded an do so to Jenkins, supra, in the Second Circuit. trial, allowing knowingly himself to be Jenkins, Cir., United States v. raising placed 490 F.2d 880. defense. 420 It must be conceded the reserva- It must be 43 L.Ed.2d at 277.3 remem delay tion in deliberate Serfass question bered that the considered question purportly goes It right perplexing. only govern that of the but, appeal ex- right to the as appeal under ment to take an barring relate pressed, it also to permits could C.A. statute This an any as a defense. appeal by unless further 12(b)(2) any during Objections Rule time noticed the court —Defenses pendency proceeding. Must Be Which Raised. objections Defenses and based on defects in provides: 3. 18 U.S.C.A. prosecution the institution of the or in the in- dictment or information other than that it appeal by fails In a criminal case an the United jurisdiction to show charge in the court or to appeals States shall lie to a court of from a may only by offense decision, be raised judgment, motion be- or order of a district fore trial. The shall motion include dismissing all such an indictment or informa- objections defenses and then available any counts, to the except tion as to one or more present defendant. Failure to such de- that no shall lie where the double objection provided fense or herein consti- clause of the United States Consti- thereof, tutes a waiver but the court prohibits prosecution. for cause tution may grant shown relief the waiver. Lack jurisdiction Cir., McGough, or the failure of 4. Cf. United States charge or information to n. 2. offense shall be *11 event, it is doubtful that the court would

treat a right constitutional in such an NAT G. HARRISON OVERSEAS COR off-hand fashion. PORATION, Plaintiff-Appellant-Cross Appellee, considered has The in at- delay question v. bar a may tacking TITAN AMERICAN TUG this cir- law The defense. Defendant, etc., chal- bemay an indictment cuit appeal, time first lenged Triangle Co., Towing Transportation & v. Walker conviction. trial after Inc., Appellee-Cross Claimant Owner F.2d Cir., States, 5 Appellant. circuits. other law It is 26. Cir., d/b/a River Beard, Thurston CRAWFORD v. Co., al., Plaintiffs-Ap Bailey, v. et Transit F.2d Appellant, pellees-Cross 560, 562. F.2d Cir., v. delay was an admit-

It is true experienced counsel CORPORATION, trial tactic but ted G. NAT HARRISON OVERSEAS advantage of what is ex- taking were pressly ant-Appellant-C Defend They 12(b)(2). permitted Rule Appellee. ross government’s be- see the wished TRIANGLE TOWING & TRANSPOR to strike the indictment. they moved fore INC., CO., Plaintiff-Appel TATION ruled, but did have trial court could Appellant, lee-Cross late. It too not, that the motion came (the trier that the happened facts) the facts in its considered River Thurston CRAWFORD d/b/a to the double gave and this rise Co., Defendant-Appellee- Transit claim. Appellant, Cross problem presented obtuse in this Corporation, Harrison Overseas Nat G. is but example another Movant-Appellant-Cross Appellee. law, labyrinthian state of par- criminal ticularly stages. Although NAT G. HARRISON OVERSEAS COR apprehension, not without some I believe PORATION, Plaintiff-Appellant-Cross that defendants have the better side of Appellee, would, therefore, I the case and sustain the district court and dismiss appeal. INC., SALES, MARINE De JACKSON Appellant. fendant-Appellee-Cross

No. 74-2149. Appeals, Court of Fifth Circuit.

July 1975.

Opinion on Rehearing Oct.

See