United States v. Jose Emiliano Velazquez, 490 F.2d 29

United States v. Jose Emiliano Velazquez

490 F.2d 29

2d Cir.

1973

Check Treatment

*2 mit to it. *3 George Atty. Wilson, Asst. E. S.U. argu- agreed Judge this with Pierce (Paul Curran, Atty., U. N. J. S. S. D. II ment, it to count and extended Y., Nields, Jr., John W. and Andrew S. memorandum his In as well. indictment Schaffer, Attys., Asst. U. on the S. support 30, 1973, in April opinion of brief), appellant. for order, Judge Pierce consid- his dismissal Ratner, City Michael D. New York the court was that under Rule ered (Richard Levy Eisner, Levy A. and & alleged pass upon defense to entitled Steel, brief), City, New on the York for grounds of in- on the the indictment to defendant-appellee. a de- notice, as such adequate inasmuch passed fense, would be at if raised Judge, Before KAUFMAN, Chief and trial instance first TIMBERS, and LUMBARD Circuit judge. those considered He therefore Judges. Velazquez’ portions of Judge: LUMBARD, Circuit Velazquez on had obtained which record discovery had been and which pretrial appeal by This an papers. part motion included (as amended) under 18 U.S.C. § 17, District order the Southern on October from revealed These dismissing (Pierce, J.) an indictment Velazquez’ New 1971, board local Velazquez charged report Jose Emiliano to for him notice York mailed physical pre-induction with to an armed failure to submit to a and submit (count I) physical 223), (SSS examination exam- forces Form examination report 2, to 1971. and failure for and sub- held on November ination to be (count II), error, to mit induction both vio- typographical the notice Due to a App. 462(a). of 50 lation un- U.S.C. returned § and was was misaddressed post office. board delivered to the The indictment in the case was filed on October was sent A Form 223 second July 25, 1972, August and 8, 1972, on 2nd ex- 27, 1971, November for the same Velazquez pleaded guilty. Over the date, the correct ad- and to amination following months he filed fourteen volu- moved, evi- Velazquez had But as dress. minous motions dismissal, extensive notifying local board dently without discovery, and pretrial other forms fact, undeliv- returned too was it relief. filed brief affi- subsequently obtained The board ered. opposition davits to most of these mo- January on and Velazquez’ address new tions. Trial tentatively had been set for (Form Letter him notice 1972, sent December continuing ob- #8) under a he was held, no nor However ligation report submit for and to hearing. pretrial Instead, several in- The letter physical examination. hearing delay, months’ and without appear towas that he him also formed side, Judge for either Pierce dis- counsel at Whitehall examination April missed and Ex- Entrance Forces Armed Street Velazquez’ on the mo- basis of one of at 7:00 in Manhattan Station amination doing solely so tions. relied he 20, 1972, January a date later onm. a. papers presumably, motion al- and January changed There 21st. to though govern- explicitly, on the actually received dispute opposition. ment's affidavit notice. this letter Velazquez’ motion was successful papers further revealed F.R.Cr.P., Rule on the made Velazquez appeared January grounds 21st he had valid that on defense accordingly quenees. sta- dismissed He Street as directed at the Whitehall I. indictment as to count However tion for examination. undergo the examination refused went on dismiss Pierce then cooperate Serv- with Selective refused to count He noted indictment as to II. re- personnel, he continued ice authority to order a that a local board’s spite his local efforts fusal registrant submit fail- the reasons for his to obtain board 1631.- induction on 32 rested C.F.R. examination. to take ure 6(a) (1972), provides: Thereafter, sent he was on June notwithstanding or That Part in- for and submit order regulations, any provision these delinquency, prior of his duction because registrant classi- when a whatever given July 6, reporting date refused otherwise fication again appeared the Whitehall He comply of his failed to with an order *4 date, required but station on the Street report for to local to and submit board cooperate. to

he continued his refusal may examination, he an Armed Forces to selected and ordered be Judge not- in his memorandum Pierce though report he for induction even none # 8 contained that Form Letter ed acceptable for has not found safeguards procedural infor- and of the in Armed Forces .... service the rights registrants mation about the Rely- followed, Judge concluded, that printed Pierce It on Form 223.1 are legal the was no ing 1628.- “since the that 32 on fact C.F.R. § report physical duty 16(a) (1971) specified Form to the for a examina- use ap- tion, to ‘refused 223,2 he said cannot be have and that the Selective Service rights comply to an parently otherwise to with notice of these or failed deemed report importance for includ- to to be order of his local board of sufficient form, that required held and submit to an Armed Forces exami- on the he ed ” provide ade- did not nation.’ Form Letter # 8 obligation report, quate notice of an to Judge government appeal to The seeks duty report hence to arose and that of the indictment Pierce’s dismissal that, receipt. ab- its He concluded au- respect to It relies for both counts. though duty report, even Ve- sent the to (as thority appeal to on 18 U.S.C. § ordered, lazquez reported there amended) appeal and contends App. no violation of 50 U.S.C. § was constitu- not barred in case the 462(a) the to submit to ex- failure against protection jeop- tional amination, prem- a violation is since such gov- ardy, which to is now sole bar obligation on ised avoidance appeals from dismissals ernment knowledge prior conse- con- criminal cases.3 On merits it registrant 10, 1971, informs 1. Form Letter § December and to 1641.4 effective $ “continuing obligation” September 2, perti- section, to that he is under a report examination, physical part, refers to : nent reads as follows board, outstanding registrant and order of local mails When the local board place, date, Report him time for informs of the and an Order Forces to for Armed By contrast, (SSS 223), a Form his examination. Examination shall be Form it duty registrant how order additional information on contains to registrant may place have the of his location such examination the time and transferred, physical [Empha- he examination how fixed in the order. ... may guard against job, how loss of his sis added.] disability may present evidence of medical Ap- prior military portion him warns 3. The or service. relevant of the Criminal possible peals Act, amended, and criminal sanc- § administrative U.S.C. obey appeals by tions for failure to the order. which allows provides: criminal cases in certain instances applicable during period appeal regulation In a 2. The criminal case an the Unit- here, originally appeals 32 C. ed 1628.16 of shall lie to a issue court of decision, judgment, F.R., effective from a § 1628.10 order of a was renumbered or prevail merits Form # 8 on because receipt Form Letter less tends provide adequate provides adequate Letter # 8 does not notice of a Selective obligations neglect legal obligation notice of for and sub- Service criminal and ad- It also which incur severe mit examination. mailing urges ministrative of the form sanctions. that mere obligation (see 2). gives fn. rise I. Velazquez contends, opposition on althoügh point, jurisdictional ap an hold that in this case We styled his order a dismissal peal by Pierce does lie under § although it was 3731. We conclude that papers, solely it was placed on motion based determina acquittal equivalent nonetheless tion of trial court when it based gone court had him merits because dismissal of the indictment beyond solely papers prior face on motion submitted (the “competent evidence” consider selection before either term) in his any oppor jury court’s contained waiver of a without tunity He therefore claims record. side to be for counsel either permit “pecu- heard. specifically re- liar defendant” — Supreme has re Court place ceipt # of Form Letter SSS cently question of as cautioned *5 by a sec- 223 —to reconsidered Form be sessing jeopardy not is whether attaches provisions tribunal, contrary ond any by test. to be decided mechanical argues He further that of § Somerville, 458, 93 Illinois 410 U.S. v. jeopardy would instance of double be (1973); 1066, 425 35 L.Ed.2d S.Ct. hy- clearly more out because made Jorn, 470, 91 v. U.S. States 400 cases, nature of brid Selective (1971); 547, 543 Unit S.Ct. 27 L.Ed.2d they are traditionál crimi- since at once Sisson, 267, ed 90 S. 399 U.S. proceedings proceedings nal and also (1970). 2117, Ac Ct. 26 L.Ed.2d 608 review of action administrative wholly dispositive of cordingly, it is not place judge which hands of the is- by Velazquez to state raised claim usually sues of fact not left to his deter- jury waived that was neither since the ordinary mination criminal trials. jeopardy empaneled, have nor could Velazquez gives although if attached, contends even a this rise to appeal strong allowed, presumption.4 is v. he should nonethe-

This 267, January spect brought ment added criminal Act of ties ardy. poses. information as double liberally ecution. except district States the statute The beyond merely by language to cases in Constitution, See United 1970, provisions Constitution that no 1, cases court jeopardy construed 1971. Under by those 2117, the effective date appeals 14(a), was the double the Omnibus Crime were more dismissing appeal States and raised the result of an concerning ^[**] clause 26 L.Ed.2d 608 to effectuate 84 prohibits by this one or Stat. shall v. jeopardy provision an indictment or section shall be ^[*] Sisson, strictly indictment was 1890, prior wording many lie further double more where 399 its difficul- ^[**] Control (1970). amend- limited counts, jeop- pros- Act, pur- re- fendant’s choice of siderations been made. take fore some of the facts this early over, Pierce’s argued, ever, timate selection discover material contemplate waiving pretrial It was a is a once it are not determinative where trier of jury safe to conclude dismissal motions, procedures, stage therefore the us now to are relating jury is before reached at mindful, fact on or judge of the at to the course a trial trier of concerning a state trial. But non-jury jury may initially right sought jury Velazquez the time Service cases categorically fact merits. How- federal case. or basis of his has not these con- be the jury trial simply was part did decide More- may jury has yet too de- be- ul- 34 (3rd Cir., permitted, however, 1973). Pecora, F.2d 1289 Retrial is satisfactory rely, ruled in the defend when the trial court Nor is it allegations non-jury cases, simply in on ant’s favor on the been done in hearing Brewster, (United evidentiary su dictment States fact that no govern pra) ; disposing of on facts contained in the by held trial court (United particulars v. United Newman ment’s bill States the motion. See 157, Co., 271, States, U.S.App.D.C. 410 F.2d v. & Boston Maine R. 380 U.S. cert, 868, (1965)); den., L.Ed.2d 728 S.Ct. 85 S.Ct. 396 U.S. any procedural The criti or on defect which would 24 L.Ed.2d 121 government’s manifestly require reversal on question is whether the cal (Illinois Velazquez, prosecuting in both conviction resulted v. Somer action in phases, ville, supra). permitted in judicial Retrial is administrative its govern though it point the trial these situations even where reached the steps may completed power its self have its course. retrace ment’s countervailing interests checked underlying thrust of protected double individual the jeopardy jeopardy protection the fifth amendment. clause of limit the number of times thus not to Jorn, supra, United States v. may into court defendant be summoned Hunter, 547; U.S., Wade single present law offense. Under 688-689, 69 S.Ct. may repeatedly. is rath done be (1949);

L.Ed. 974 Brown, of times er to limit to one the number at 1040-1041 481 F.2d required that a (8th Cir., 1973). proof chal innocence to submit lenge acceptance the other side. present law of double expresses function of the This the root precludes retrial in instances litigants proceeding are trial as a where label,5 regardless when, tribunal, neutral to be heard before a of the defend in favor court has ruled argue they appear and as adver where *6 going of the merits to the ant on facts case is to be sub saries and where their trial adduced at if facts were case these jected open public scrutiny to and is supra); (United Sisson, v. States multiple is trials in this rebuttal.6 It evidentiary they presented an at were jeopardy double clause sense which the hearing (United R. v. Southern States designed prevent. is Cir., (4th 309, Co., 312 F.2d 485 they stipulated 1973)); or if were granting The district court’s of Velaz- Brewster, (United parties v. the States quez’ presented motion different situa- 2531, 501, L. 33 92 U.S. S.Ct. 408 no no trial. There was There was tion. (1972); v. Sis fact, Ed.2d 507 son, supra, United States evidentiary hearing. was, in There U.S., 90 S.Ct. commonly of 399 at 285 no introduction of evidence as infra). 2117; system. but see fn. in our adversarial understood problems many in icy openness. discussed 5. of While In such an instance facts of concerning above) (see again fn. Sisson have been offered to the other side part public record, now be of motions characterization made of the with avoided, inviting the amended see that we do not difference that instead of chal- any way lenge they engendered acquiescence. makes the in the statute version of have jeopardy oppor- That more liberal. law of double have had the But at least both sides ap- pass process tunity which is rather the “constant” law of them Consequently, pealability however, note, measured. is to be submission to the court. We jeopardy solely prohibition appeal is the individual insofar as that an on perceive concerned, stipulated present for distin- reason no in facts rests at on dicta wording guishing old under cases decided cases and not on Brewster Sisson Supreme specific holding under decided the act from those of of the Court. See Brewster, supra, United at 506 of new. States U.S., 2531; 408 92 S.Ct. States Sisson, supra, U.S., stipulated adjudication facts at 285 of 399 on That an 6. pol- keeping this in retrial is would bar

35 stipulation Bramblett, There was no of facts. Rather, pa- court went 99 L.Ed. 594 S.Ct. pers defendant, permitted which included But it is when dismissal copies pre- in other in his Selective Service based on facts revealed entries is stages. giving record, trial and without either side opportunity heard, an to be and without v. Boston & Maine having appear in the defendant even. Co., supra, example, appeal an R. open court, concluded as a matter of law the old was allowed under when § deprived defendant had been gone beyond trial had face process inadequate due notice because of indictment, considered provided by # Form Letter charging law, in offense a valid particu- only way appeal government’s

The which an reach the bill of place Velazquez lars, could determination he concluded the basis chárged jeopardy to claim that no offense was after all. jeopardy consequence attached trial As a he had dismissed the reaching beyond Supreme court’s the face held on indictment. Court showing jeopardy of eviden- indictment did not review that attach in “[a] tiary indictment, outside facts situation. which facts would constitute a defense In the more recent case on the merits at trial.” United Supply Co., States v. Martin Linen Brewster, supra, at of 408 U.S. at (5th 1973), Cir., F.2d 1143 which in- newly appeal volved under the amend- similarly Fifth Circuit ed al- § showing. however, was, There such appeal lowed an where trial court’s argued might there have been had dismissal of been showing such a had the facts been made after “the dis- [had] reached tested for which the court been closed its case . nature of forge open court, the de- pre-trial procedures” extensive but had Sisson, sincerity fendant’s had “ yet put its to test in ‘hear- case accepted facts at least been ing’ prior much evidence” opposition. without Again less at it was held itself. But case. this was not the did not attach.7 is not dis- on facts itself Reliance positive issue, then, ear of the issue. As we stated whether lier, permitted, and conse retrial court has relied on outside the quently is also nor even whether *7 permitted, judge may of indict when dismissal considered trial have such alleged “undisputable,” in in ment on facts the is based as as Pierce facts Brewster, necessarily v. States here. dictment. United did facts are as Since 2531; supra, 506-507, pur 92 S.Ct. see for the at sumed as uncontroverted Green, poses 350 this or also v. of a made at dismissal (1956); 522, stage, 100 L.Ed. 494 facts 76 S.Ct. the issue is how these have by 1973) Ponto, ; cases the 7. Most the recent draft cited 454 of United v. F.2d 657 States jeop (7th support 1971) Findley, ; his in of claim that v. defendant ardy Cir. States United point, attached, 1971). (1st are while close in But see fn. has 439 F.2d Cir. 970 Rothfelder, distinguishable ac because the trial court’s 474 F.2d United v. States infra. cert, gone (6th den., Cir.), than the case tion had further was 413 U.S. 606 (1973), ap- there here. In most of them was either 93 L.Ed.2d 1044 hearing pears raised in on the evidence the more to the defendant from favorable presentation appeals, opinion to of evidence at dismiss or of the court of but thereby carrying F.Supp. arguably opinion, the defend district court’s jeopardy. 1972), (W.D.Mich., ant of makes it clear across threshold See parties Sisson, supra; United motion was on facts which States decided agreed McCreery, (7th undisputed. F.2d 1381 Cir. were States v. power of decide a case on such himself to Consideration treated.8 been having thought place de- a de- the merits without ever to has facts not been in confronted with the evidence has fendant when fendant open in the court court. ventured them before adversary. See United presence of his Consequently hold has we this court Covington, 89 S. States jurisdiction to review the of dismissal (1969); L.Ed.2d 94 Ct. the indictment. supra, Sisson, fn. 19 of 399 U. 56 at 290-291 and fn. 302-303 II. S., 2117. On merits find the defendant’s unpersuasive. By dis- during contentions Bacon remarked As Senator assumptions no trict court's there original Ap- passage Criminal dispute Velazquez notice of ‘being received jeop- Act, peals “The words location, physi- time, phrase” date his ardy’ entirely a are technical undisput- cal examination.10 It was also man that a to the fact and do “not relate report ordered, he did but ed that danger is indictment soon as an to Cong.Ree. then refused to the examina- submit preferred him.” tion. did not protect Count I of the indictment does Constitution charge danger him with to for being failure placed in a defendant from physical, only long to with may wish, but failure so state as often as the accepted contention, to it. only submit His put proof once. Just his as he to duty Judge Pierce, put is that since the not have been as he would inadequate no- alleged was vitiated proof on failing consequences to re- tice of the facts made available he was not on so rights port procedural solely through pre-trial certain trial court though registrants, then even he did re- discovery court and the and which the yet port duty pro- no differently he was under parties than treated have cooperate allegations it- ceed further indictment with factual might Selective Service. have contained or which been self particulars.9 To conclude bill in a argument might persua- be more This prop- judge may bar forever that a trial way sive claimed what if prosecution of a criminal er prejudiced by inadequa- he had stage would be cy at this after a dismissal provided him, notice for ex- arrogate ample possibly permit trial he had had a valid claim dissenting opinion pretrial sure to have See motions (2d court, Jenkins, Cir. Rule 12 heard 490 F.2d at 880 sides both 1973), present, role views the critical and with further characterizations of evi- allegations determining argued factual dence to the trier of fact. Where nature of a dismissal the indictment. counsel raised a defense which does not presentation procedural evidence, call in Jen- such a is true situation here, markedly kins was different since client runs no risk than more on a motion consequently underway; based, there was well dismissal of for ex- majority’s opinion government’s ample, particu- *8 do not on the bill believe of contrary holding here. Jenkins our lars. to per- argues Velazquez 9. The we to re that were Since concedes that he did here, mit an then no § 3731 ceive Form Letter there need to is no # argument, suggested counsel would raise consider conscientious defense Pierce, rejected Judge 12 until motion to dismiss under Rule and only thereby defeating begun, mailing report trial had the mere of an order to prior purpose litigating “continuing” legal duty to defenses creates a of valid expense causing comply but to both to added which is itself sufficient U.S.C.App. so to be defendants maintain a conviction under 50 ready every 462(a) noncompliance proven. the merits. case for a trial on See (fn. 7). Findley, supra v. See United States f n. agree. do At counsel would We most

37 exemption exemption government, to medical or to an when it military prior service, expressed through if he had for or has valid laws its losing danger employment compulsory military of need for stood service citizens, carry of its of the examination. See United does not the burden because calling Wendt, (9th up by only F.2d 679 Cir. States v. 452 those selected one record, may variety detailed But both before means. It use a 1971). motion and before Pierce on the means communication which are any appeal, letter, telegraph, this court on is barren of common use: tele phone, personal Bartchy Velazquez’ such is rather claim. claim contact. See obligations States, all his to the Selective 63 S.Ct. Service, including report for those to 87 L.Ed. 1534 This neces regardless induction, sity flexibility only provide and submit to for need no validity, must fall if one on tice in their sufficient detail so that those pun law is who which no infraction of fail to heed the-call will not be charged procedural they defect contained a ished did not act because know the required possible have been which is not even shown to A of them. citizen’s prejudicial performance defenses to need to him. of this act specified

not be him in in an advance long report order to so as some mecha large a structure to This is too through provided, nism is in as it is build on so weak a foundation. system, by duction which such claims pro place, first Form Letter # does 8 may Irons, be raised. United States v. obligation adequate vide notice of the (6th 1966). 369 F.2d 557 Cir. See physical ex and submit States, Schutz v. United 422 F.2d 991 regis amination. letter advises (5th 1970). Cir. obligation, trant of the existence report, time, date, and location to claims, If had such he could telephone number of an address through cooperation have tested them through registrant can com which the with the Selective Service. Should he authority promulgat municate with the them, still have he is free to test their ing the order should he be unable may meritoriousness place trial. then He comply. reason some any facts which he be- issue obligations lieves un- show that the were Adequacy of found in notice lawfully imposed on him to submit to other cases on less than these re- even examination and later Abrams, quirements. United States v. induction, for and as well as submit (7th 1973); 476 F.2d Cir. any any presump- facts which rebut Williams, 433 F.2d United States v. supporting validity tion gations. obli- such (9th 1970). Both of Cir. obliga- holdWe that such these eases involved oral notice placed upon unlawfully were not obliga- tions registrant of a Selective Service initially him when notice them was receipt proof tion there where through receipt of Form Letter made any order, proof nor written registrant the con- was informed of # 8. sequences of disobedience. As matter required Beyond this, however, law no than this was there is more Velazquez’ at the letter order was in the deci time well-established distinction McGee, enforcing received. sions draft laws between See United 1972); obligation (7th reporting F.2d Cir. examina submitting (9th Zaugh, Cir. 445 F.2d 300 tion or induction and that of Dombrouski, Truesdell, 1971); Billings United States v. them. See (8th 1971); 445 F.2d 88 L.Ed. Cir. *9 (2d comply DeNarvaez, (1944). F.2d v. refusal States Wilful cert, den., obligation Cir.), the foun 822, can constitute 396 U.S. either separate under 50 for a offense 24 L.Ed.2d 72 dation judge deprived 462(a) predecessor App. its trial something U.S.C. provision process, (see de v. Dom akin to due United States 1293-1295; protections brouski, fendant is to be denied supra, at Schutz although supra, Jeopardy 994), Clause. In so States, of the Double holding, v. United fly législa ordi of the is in the face failure to a violation history Appeals merged narily for failure tive Act, of the into one Criminal 84 Stat. are established. U.S.C. § submit both supra. Supreme interpreting Irons, Court’s decisions States Act, in own recent decision our distinction makes Velaz This Jenkins, F.2d quez’ more anomalous. all the claims important 1973). (2d More at 868 Cir. Charged to a to' submit with refusal begun ly, eroding process a we have may examination, of course protections of Constitu absolute charge, possible to the defenses raise all any person tional “nor shall command: including inadequate of the conse notice subject be to be the same offence doing he quences In so such refusal. put jeopardy or limb.” twice life that, to establish indeed be able principle, That “one of the oldest ideas station, he was once at the examination civilization,”1 justly western apprised ramifications of all the never founded “fear and abhorrence cooper or of failure of disobedience governmental power try people twice however, that, re ate. To establish My for the same conduct.”2 brother showing his quires more than a Jenkins, stat Lumbard in dissent allegedly defec order contained application ed that “inflexible obligation merely to be tive notice unnecessarily Jeopardy Double Clause place certain time. at a at For, certain frustrates the fair administration having reported, show he must justice.”3 criminal He would therefore report in notice to more defective apply balancing de this case a test to re that his defense order to establish a protections termine whether of that physical examina fusal to submit pur clause attach.4 I believe that tion was lawful. pose Jeopardy Clause was Double on the basis hold that We therefore to insure the fair administration of papers in the motion the facts disclosed justice by placing criminal an absolute le- there was the district court before power of barrier between the awesome ground dismissing gal I of count and the criminal accused necessarily follows indictment. judgment when ren the merits is improperly dismissed. count II was Accordingly, dis dered in his favor. I rein- to be is therefore The indictment sent. respects. in all stated recently had occasion We for further remanded Reversed and supra, explore Jenkins, proceedings. depth jeopardy the ambit of the double Judge (dissent- KAUFMAN, Chief protection indict- accorded one whose ing) : thorough ment was dismissed. my majority opinion, opinion by Friendly, brother we held As I understand Jeopardy holding today that, Clause because the Double bars we are prosecuting Velazquez, Illinois, its both admin- Bartkus v. 1. judicial (1959) (Black, phases, 676, 696, istrative reached the 3 L.Ed.2d 684 point government’s power J., dissenting). where the to re- steps by countervailing trace its is checked Id. protected by the interests of the individual fifth clause of the amend- 1973) (2d v. Jenkins Cir. 3. United States is, way of ment.” This course another dissenting). J., (Bumbard, at 881 saying interests accused F.2d gov- According majority, those of the must balanced “The critical question government’s ernment. action whether *10 gation report to that for or submit the trial after examination. the indictment” “dismissed court has ap- developed not based on facts support of It critical to note that in is indictment, parent of the on the face motion, Velazquez docu- his submitted general issue to the and which related garnered mentary evidence, Although majority ex- the case. pressly discovery, pretrial in- course of question whether reserved and cluded the of Action three Minutes the dis- had result would obtain similar communications Service Board trial, neither acted before trict court precedent examination, regarding physical all different policy dictate a nor in his Selective of which were contained conclusion. answered Service file. submitting four-page defendant, affidavit fundamental that a opposition no ef- again placed to the motion. It made may not acquitted, once proffered by dispute alleged fort to the evidence crimes. for the same adding only Velazquez Velazquez, 141, States, Fong v. 671, 389 U.S. Foo United point (1962); that his “new ad- had failed to out L.Ed.2d 82 S.Ct. Kepner days dress was not received until 3 States, 195 U.S. v. United ruling reporting (1905); on the date.” In 49 L.Ed. 24 S.Ct. Judge motion, Pierce concluded Ball, 163 U.S. dispute, were not since the Ac- 1192, 41 L.Ed. Velazquez’s con- these facts sustained judgment cordingly consti- below nor reprose- tention that he had never received Velazquez, acquittal tuted adequate notice jurisdiction was otherwise aware of lack is barred and we cution physical duty ex- of his for a appeal. to hear this amination, viola- the Selective majority opinion Ve- notes that Ac- not established.5 tions had pre- lazquez motions filed numerous not Ac- had been established. tions ruling judge, trial relief. The Judge cordingly, Pierce dismissed of these mo- one favor on defendant’s indictment. tions, first count dismissed the outset, At the it is clear that neither alleged sub- failure Velazquez’s description his motion as examination, physical mit indictment nor one to “dismiss” for in- second count—failure of his Pierce’s characterization form well. These duction—as dismissals dispositive, Although decision a “dismissal” is appeal. predicate of this question in are before us. We characterized it is true that nature of structed that it is the indict- to dismiss the his motion as one it, appended judgment, not the pursuant Fed.R.Crim. name to Rule ment asserting of the double which is determinative jeopardy P., it clear that Sisson, appearing issue. United States v. face of on the defect 7, 290, n. in- 90 S.Ct. nor did he claim that the (1970); crime, charge 26 L.Ed.2d 608 failed to dictment Jenkins, supra, 490 F.2d underlying at 878. was violative States statute Sisson, example, Rather, Velazquez In the district court of the Constitution. judg granted a “in arrest defense asserted his factual charges, following guilt. jury contending re- ment” verdict of had not that he held, majority6 Supreme proper ex- A Court notice of the ceived however, despite accordingly this characteriza- obli- amination jurisdiction II 6. Reference is made to Part C Justice I we have Since do believe Sisson, opinion express appeal, Harlan’s I no view on to bear 288-290, Sisson, supra, ruling. 399 U.S. at the merits of this majority writing for a in which he was of the Court. *11 40 rests, upon not the suf- tion, judgment an ac- a decision that was fact the alone, ficiency of indictment but as be- the quittal treated such and findings upon indict- judge If an had made extraneous facts. cause the trial presented of a ment is dismissed as a result on the evidence based fact showing stipulated Moreover, applied of evi- the fact the he had at trial. dentiary the ulti- facts outside and concluded

law to those on a defense mately draft which facts constitute innocent of was that Sisson trial, appeal is availa- majority the merits at since stated that evasion. judgment upon ble. de- was based factual the beyond in- the face terminations 2534.7 U.S. at 92 at 408 S.Ct. dictment, as a it not would be treated judgment.” Moreover, prior an “dismissal” or “arrest of and under both was, instead, acquittal every on the mer- Appeals statutes, an current Criminal gov- held, such, question the Court its. As circuit that has considered appealing precluded from was in the of a ernment context Selective .Service then-existing by prosecution pretrial version of the both the decided that a Appeals and, basical- Act more Criminal based on facts not found “dismissal” reality ly, double the constitutional bar is in the face of the indictment

jeopardy. acquittal appealed. an and not be Rothfelder, United 474 F.2d States v. Although, Jenkins, trial as (6th 1973); 606 United States v. Cir. findings made his in Sisson had (4th King, 1973); F.2d 474 1343 Cir. in the on evidence submitted of fact McCreery, United 473 F.2d States v. that of a doubt course (7th 1973); 1381 Cir. judgment applies to en- rationale same Weller, (9th 1972); 466 F.2d 1279 Cir. prior commencement of tered Ponto, 454 F.2d States v. 657 dispelled Brews- was States v. (7th 1971); Fin Cir. United States v. ter, L. 33 S.Ct. U.S. (1st dley, 1971). Al 439 F.2d Cir. prosecution (1972), Ed.2d 507 where though only in Mc the Seventh Circuit pretrial attempted appeal dis- from a Creery Ponto, and the Ninth Circuit appellee an missal of indictment. Hill, in United States 473 F.2d 759 argued in fact an that dismissal was (1972), obscenity prosecution, have an acquittal, non-appealable on and hence explicitly jeopardy that stated the double grounds. statutory and constitutional reprosecution, clause bars each agreed that the district The Court appeal decisions, other which bar gone beyond court had the face determining that “dismissal” findings pe- indictment to make factual non-appealable acquit fact constituted a hand, culiar case Sisson to the tal, necessarily imply the constitutional seeking prohibit from bar well.8 review: face, then, Sisson Under United In the of uniform authori appeal ty not lie contrary,9 majority . from does con- dismissal, expressly reaching 7. Tlie went on to decide that Court without particular sense, however, the Brewster circumstances constitutional In a issue. judgment prosecution, begs question, district court because one of the itself, solely upon acquittal rested essential features of an distin- facts, guishes finality, rather extraneous it from a dismissal is its jeopardy rather a reviewable dismissal hence the double sense. The determina- acquittal. particular judgment acquit- than an tion is an tal, therefore, expression is at least a tacit prior current texts of the Both re- double clause forbids Appeals explicitly provide Criminal statutes prosecution. appeal from dismissals prosecutions. Contrary majority’s claim, there- Several circuits have per- Covington, fore concluded the statute does opposed acquittal, (1969), repre- mit from 23 L.Ed.2d does although Surely emphasis proce majority’s the trial court eludes clearly beyond disregards Supreme in went face of the dural niceties granting Velazquez’s repeated dictment admonitions Court’s dismiss, jeopardy did not attach be in constru wooden use of technicalities ing jeopardy provision. the facts relied on the court See cause *12 forge g. Somerville, had not “been in the of tested e. Illinois v. open court,” they accepted nor “been 35 L.Ed.2d 425 by government opposition.” the without simple demonstrate A illustration will Putting evidentiary to one side that quality of the distinction the ethereal Judge which ruled Pierce by majority between a “fact- drawn effectively beyond dispute,10 were I can triggers finding proceeding” majority’s not subscribe rationale to the Jeopardy protection of Double over in de which exalts form substance The does not. and one which Clause termining protec when the fundamental ap- majority virtually that an concedes Jeopardy tion Clause shall Double peal in this case had would not lie apply. by the Whether the facts found receiving evidence Pierce ruled court were in an eviden elicited by presence Velazquez “in the submitted tiary hearing case, or, as in this on the adversary.” Thus, had of his present basis of affidavits and exhibits single required wit- to call even a been ing documentary evidence, uneontested perhaps support in his ness motion — support when those facts a defense to secretary of the draft chairman or charged, acquittal the crime results. the contents board —to authenticate appeal explic- Moreover, sent an permitted in instance which an was the Court nor considered. beyond except questions itly open where the trial court went its con- left all ruling Finally, the face of the on a mo- statute involved. struction of the Covington, that, although tion to dismiss. case was noted the Court having argued was indicted for on the violated the Mari- decided below by obtaining marijuana assumption huana Tax Act itself was with- that the indictment having paid against out a transfer tax. The dismiss but defen- a motion to sufficient ground dant moved to dismiss on the bill of reason became insufficient privilege against express particulars, his necessarily provide self-incrimination would refused to the Court complete particulars any a defense to was view a bill of whether prosecution. government argued purposes part The of a record for fact that, properly construed, course, the transfer tax an indictment. Of motion to dismiss provisions compel may always of the Act would in- the face of a consider court criminatory ruling disclosures. The At district court to dismiss. on a motion record although most, dismissed the Maine Railroad stands Boston & merits, particulars proposition Court affirmed on the it noted that bill questions pro- paper the bases for the dismissal were in a criminal “filed” which ceeding, that, Covington’s case, indictment, may law and there was serve to as is the necessity pecu- appropriate no to resolve issues of fact construction “illuminate” the Moreover, Sisson, liar But, motion. docu- a statute. the Selective Service explicitly distinguished Justice Harlan Cov- case consti- ments considered instant ington ground findings paper evidence, on the factual or an ad- tute not a “filed” required, that, pleading were and added in- “nowhere “illumination” of the ditional opinion Covington does the even hint that offered dictment. The documents were requiring pretrial evidentiary charge a dismissal hearing, tlie defendant as his answer properly aor dismissal motion de- establish his innocence. and to general ferred to the trial of the issue would appealable provi- weakly appeal, government be under the motion-in-bar rather On Appeals unexpect- sion of the Criminal Act.” maintains that the district court’s Sisson, supra, prevented granting U.S. at 303 n. ed of the defense motion presenting prosecution 90 S.Ct. at 2137. from its evidence. majority’s deny reliance on But even now the does not Railroad, excerpted accuracy Boston & Maine the materials (1965), my Velazquez’s file, 13 L.Ed.2d 728 nor from Selective Service challenge brother Lumbard also cited in his dis- dissent does it the correctness similarly misplaced. jurisdic- findings Jenkins is drawn therefrom. trict court of fact point apparently tional neither raised dismiss,” file, requisite “motion to and had the magic guilty,” formality pronounced by the chanted the words —“not standard of acquit” majority failed satisfied. “I or “the would have beyond promote proof concept need- to meet its burden of Not will litigation supply prolonged “I dis- lessly doubt” —rather reasonable majority, miss,” trappings im- decision have been demanded appellate on which and the de- far too slender a reed mune to review but it is protected constitutional retrial. Sure- rest fundamental fendant any- rights. ly if and Jenkins teach us Sisson carry thing, it is that do not mere labels remains If there doubt day as double on an issue as vital homage majority’s opinion pays form hardly questioned jeopardy. It can reason, expense at the of substance Judge Pierce indeed treated Velaz- Stray *13 in United our decision quez’s acquit, motion as for one to 1972) horn, (2d should 471 F.2d Cir. facts, appearing on the found nowhere Stray- lay it rest. We set down grounded face of indictment and guidance horn, for of trial courts defendant, proffered by the evidence future, procedure a Selective addition, which, in the essence went to dealing prosecutions de with Service guilt or offense. of his innocence validity challenging of Selec fenses orders, which defenses tive Service underlying I motiva- conceive ultimately or life would determine the majority’s holding tion for the is its There, stated that death of the case. judge may concern that the trial bar defense, which attacks order-of-call “proper” prosecution of a case arro- validity induc board’s of the local gating power to himself “the decide order, properly raised be tion “is one having case on the merits without ever through judg fore trial a motion defendant evi- confronted acquittal.” ment open But, dence court.” supra, Strayhorn, at 665. 471 F.2d power now, has that either “dismiss- efficiency judicial forceful reasons ing” undisputed, and the indictment on compel prospective de which led us to uneonfronted, therefore facts after de to assert order-of-call fendants directing commenced, trial has certainly ap prior to trial fense would acquittal verdict of close of the at the pear applicable at defenses well to government’s may also, ease. it He mailing tacking the issuance appear opinion, my from brother’s orders, such as that ad Selective Service dismiss an indictment before trial here. I read Jenkins vanced Since appearing and, in the record so appealability Pierce sus bar long as he it de- does with a sufficient following tained the identical defense gree formality, protect the defendant Velazquez’s examination against Thus, de- and retrial. acquittal upon a motion for file apparent narrowness, spite its dan- case, prosecution’s I the close ger majority’s opinion with the position accept majority’s cannot balancing tests will be used whittle only penalizes Velazquez for away my Friendly what brother referred heeding Strayhorn. import Jenkins as of double the “thicket” acquiesce sum, In I find it difficult jeopardy protections until few branches guar- constitutional erosion remain shelter I the accused. cannot my antee join process this of attrition of one opinion condones. Had brothers’ Velaz- protections. the most basic constitutional quez a “motion called acquittal” Accordingly, respectfully judgment rather I dissent. case, course, produced evidence in his defense.