UNITED STATES v. JENKINS
No. 73-1513
Supreme Court of the United States
Argued December 9, 1974—Decided February 25, 1975
420 U.S. 358
James S. Carroll argued the cause and filed a brief for respondent.
Respondent Jenkins was indicted and charged with violating
I
Respondent, who had first registered with his local draft board in 1966, was classified 1-A by his local board on November 18, 1970. He was found physically fit for induction, and on February 4, 1971, the local board sent respondent an Order to Report for Induction on February 24, 1971. After consulting an attorney and a local draft counselor, respondent wrote the local board and requested Selective Service Form 150 for a conscientious objector classification. Having received no response from the local board by February 23, the day before he had been ordered to report for induction, respondent went in person to the local board to request Form 150. Although respondent did secure the desired form, local board officials were directed by Selective Service headquarters not to postpone his induction to allow him to complete and submit the conscientious objector form. Respondent did not report for induction on February 24, 1971, and he was subsequently indicted.
Respondent was arraigned on January 13, 1972, and pleaded not guilty. The parties were directed to file all pretrial motions within 45 days, but no pretrial motions
after the decision, judgment or order has been rendered and shall be diligently prosecuted.
“The provisions of this section shall be liberally construed to effectuate its purposes.”
“The failure of the local board to postpone the induction order pending the determination of the defendant‘s claim as a conscientious objector was arbitrary and contrary to law and rendered the Order to report for induction invalid. United States v. Gearey, 368 F. 2d 144 (2nd Cir. 1966).” App. 4.
In Gearey the Court of Appeals had interpreted the controlling Selective Service regulation2 to require a local board to reopen a registrant‘s classification if it found that the registrant‘s conscientious objector views had ripened only after he had been notified to report for
When the case proceeded to trial, respondent waived trial to a jury, and the case was tried to the court. At the close of the evidence, the court reserved decision in order to give the parties an opportunity to submit proposed findings. Although it does not appear from the record that either party requested the court to find the facts specially,
“This court cannot permit the criminal prosecution of the defendant under these circumstances without seriously eroding fundamental and basic equitable principles of law.” 349 F. Supp., at 1073.3
The Government contended, and respondent did not dispute, that the intention of Congress in amending
receiving his notice to report for induction. The counselor would have testified as to respondent‘s sincerity and apparently would have touched upon the Gearey issue. App. 70-73. The court ruled that the counselor‘s testimony was inadmissible. At that time, the court regarded the effect of Gearey as “strictly a question of law,” id., at 73, but the judge apparently changed his mind after further deliberation, as was his prerogative:
“Trials will never be concluded if judgments rendered after full consideration are to be reversed because of remarks made and tentative theories advanced by a judge in the course of the trial.” United States v. Wain, 162 F. 2d 60, 65 (CA2), cert. denied, 332 U. S. 764 (1947).
Judge Lumbard dissented on two grounds. First, an appeal by the Government was permissible since the District Court had properly characterized its action as a dismissal rather than an acquittal. The District Court‘s decision was “essentially a legal determination construing the statute on which the indictment was based,” id., at 882, and not really an adjudication on the merits in the sense that it rested on facts brought out at trial. Second, even if the District Court did acquit respondent, the Double Jeopardy Clause does not stand as an absolute
II
When a case has been tried to a jury, the Double Jeopardy Clause does not prohibit an appeal by the Government providing that a retrial would not be required in the event the Government is successful in its appeal. United States v. Wilson, ante, at 344-345, 352-353. When this principle is applied to the situation where the jury returns a verdict of guilt but the trial court thereafter enters a judgment of acquittal, an appeal is permitted. In that situation a conclusion by an appellate court that the judgment of acquittal was improper does not require a criminal defendant to submit to a second trial; the error can be corrected on remand by the entry of a judgment on the verdict. To be sure, the defendant would prefer that the Government not be permitted to appeal or that the judgment of conviction not be entered, but this interest of the defendant is not one that the Double Jeopardy Clause was designed to protect.
Since the Double Jeopardy Clause of the Fifth Amendment nowhere distinguishes between bench and jury trials, the principles given expression through that Clause apply to cases tried to a judge. While the protection against double jeopardy has most often been articulated
A general finding of guilt by a judge may be analogized to a verdict of “guilty” returned by a jury. Mulloney v. United States, 79 F. 2d 566, 584 (CA1 1935), cert. denied, 296 U. S. 658 (1936). In a case tried to a jury, the distinction between the jury‘s verdict of guilty and the court‘s ruling on questions of law is easily perceived. In a bench trial, both functions are combined in the judge, and a general finding of “not guilty” may rest either on
We are less certain than the Government, however, of the basis upon which the District Court ruled. It is, to be sure, not clear that the District Court resolved issues of fact in favor of respondent. But neither is it clear to us that the District Court, in its findings of fact and conclusions of law, expressly or even impliedly found against respondent on all the issues necessary to establish guilt under even the Government‘s formulation of the applicable law. The court‘s opinion certainly contains no general finding of guilt, and although the specific findings resolved against respondent many of the component elements of the offense, there is no finding on the statutory element of “knowledge.” In light of the judge‘s discussion of the Gearey issue in his opinion, such an omission may have reflected his conclusion that the Govern-
On such a record, a determination by the Court of Appeals favorable to the Government on the merits of the retroactivity issue tendered to it by the Government would not justify a reversal with instructions to reinstate the general finding of guilt: there was no such finding, in form or substance, to reinstate. We hold today in Wilson, supra, that the Double Jeopardy Clause does not bar an appeal when errors of law may be corrected and the result of such correction will simply be a reinstatement of a jury‘s verdict of guilty or a judge‘s finding of guilt. But because of the uncertainty as to the basis for the District Court‘s action here, Wilson does not govern this case.
The Government suggests two possible theories, each of which would go beyond our holding in Wilson, for permitting an appeal even though the trial proceedings did not result in either a verdict or a finding of guilt. First, the Government suggests that “whether a new trial must follow an appeal is always a relevant consideration,” but no more; the Double Jeopardy Clause is not an absolute bar in such a situation.12 Second, at least in a bench trial setting, the Government contends that the concept of “trial” may be viewed quite broadly. If, in a bench trial, a judge has ruled in favor of the defendant at the close of the Government‘s case on an erroneous legal theory, the Government ought to be able to appeal; if the appeal were successful, any subsequent proceedings including, presumably, the reopening of the proceeding for the admission of additional evidence, would merely
We are unable to accept the Government‘s contentions. Both rest upon an aspect of the “continuing jeopardy” concept that was articulated by Mr. Justice Holmes in his dissenting opinion in Kepner v. United States, 195 U. S., at 134-137, but has never been adopted by a majority of this Court. Because until recently appeals by the Government have been authorized by statute only in specified and limited circumstances, most of our double jeopardy holdings have come in cases where the defendant has appealed from a judgment of conviction. See, e. g., Green v. United States, 355 U. S. 184 (1957); Trono v. United States, 199 U. S. 521 (1905); United States v. Ball, 163 U. S., at 671-672. In those few cases that have reached this Court where the appellate process was initiated by the Government following a verdict of acquittal, the Court has found the appeal barred by the Double Jeopardy Clause. See, e. g., Kepner v. United States, supra; Fong Foo v. United States, 369 U. S. 141 (1962). In those cases, where the defendants had not been adjudged guilty, the Government‘s appeal was not permitted since further proceedings, usually in the form of a full retrial, would have followed. Here there was a judgment discharging the defendant, although we cannot say with assurance
“The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity....” Green v. United States, supra, at 187.
Affirmed.
MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BRENNAN joins, concurring in the judgment.
I would hold that the Double Jeopardy Clause bars the Government‘s appeal from the ruling of this trial court in respondent‘s favor. See Fong Foo v. United States, 369 U. S. 141. Accordingly, I concur in the affirmance of the judgment below.
Notes
“In a criminal case an appeal by the United States shall lie to a court of appeals from a decision, judgment, or order of a district court dismissing an indictment or information as to any one or more counts, except that no appeal shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution.
“The appeal in all such cases shall be taken within thirty days
“The local board may reopen and consider anew the classification of a registrant (a) upon the written request of the registrant, the government appeal agent, any person who claims to be a dependent of the registrant, or any person who has on file a written request for the current deferment of the registrant in a case involving occupational deferment, if such request is accompanied by written information presenting facts not considered when the registrant was classified, which, if true, would justify a change in the registrant‘s classification; or (b) upon its own motion if such action is based upon facts not considered when the registrant was classified which, if true, would justify a change in the registrant‘s classification; provided, in either event, the classification of a registrant shall not be reopened after the local board has mailed to such registrant an Order to Report for Induction (SSS Form No. 252) or an Order to Report for Civilian Work and Statement of Employer (SSS Form No. 153) unless the local board first specifically finds there has been a change in the registrant‘s status resulting from circumstances over which the registrant had no control.”
The regulation had been in effect since 1955, 20 Fed. Reg. 737, and was not amended between the time Gearey was decided and the events leading up to respondent‘s indictment. The regulation was amended in 1973, 38 Fed. Reg. 731.
“We recognize such a rule might be harsh as applied to a registrant who in fact reasonably relied in good faith on the case law or upon the knowledge that local boards in this circuit would consider a belated conscientious objection claim, and perhaps there is room for flexibility in enforcement of this rule to avoid injustice in a particular case....” Id., at 1111.
| Fiscal year | Total | Criminal Non-jury | Criminal Jury |
|---|---|---|---|
| 1962.. | 3,788 | 1,090 | 2,698 |
| 1963. | 3,865 | 1,159 | 2,706 |
| 1964. | 3,924 | 1,076 | 2,848 |
| 1965. | 3,872 | 1,143 | 2,729 |
| 1966. | 4,410 | 1,239 | 3,171 |
| 1967. | 4,405 | 1,345 | 3,060 |
| 1968. | 5,533 | 1,800 | 3,733 |
| 1969 | 5,563 | 1,883 | 3,680 |
| 1970. | 6,583 | 2,357 | 4,226 |
| 1971.. | 7,456 | 2,923 | 4,533 |
| 1972. | 7,818 | 2,968 | 4,850 |
| 1973.. | 8,571 | 2,927 | 5,644 |
| 1974. | 7,600 | 2,753 | 4,847 |
“Trial Without a Jury.
“In a case tried without a jury the court shall make a general finding and shall in addition on request find the facts specially. If an opinion or memorandum of decision is filed, it will be sufficient if the findings of fact appear therein.”