United States v. Ronald S. Jenkins

America, UNITED STATES Appellant, JENKINS, Appellee.

Ronald S. 79, Docket

No. 73-1572. Appeals,

United States Court

Second Circuit.

Argued Sept. 12, 1973.

Decided Dec.

ardy clause of the United States Con- prohibits prosecu- stitution further tion. provisions

The of section this shall liberally be construed to effectuate its purposes.

I. charged The here indictment at issue registrant Jenkins, that defendant un- Training Military der the Universal and Carroll, City, James for S. New York Act, “knowingly Service and ne- failed appellee. glected perform duty required to Atty. Sheridan, L. Kevin U. S. Asst. him under and the execution said (Robert Atty., Morse, D. U. N. A. S. E. knowingly Act Regulations, by and re- Y., counsel), appellant. for fusing failing and submit induc- tion into armed forces of the United LUMBARD, Before and FRIENDLY given after notice had been Judges. FEINBERG, Circuit defendant Local Board No. exercising jurisdiction behalf, in that Judge: FRIENDLY, Circuit quiring report for appeal by the This States fróm United day duction February, on the 24th judgment Court for the of the District 1971,” App. in violation of 50 U.S.C. § dismiss- Eastern District New York 462(a). an indictment after a bench trial by jury, Jenkins waived trial and the growing the latest in a list cases by Judge Travia, case was heard who showing eagerly awaited 1970 opinion containing later filed an find- Appeals Act, amendment the Criminal ings of fact The conclusions law. has not U.S.C. 84 Stat. developed facts at trial were as follows: problems resolved all area.1 this receiving report After for order statute, The as here rele so far 24, 1971, induction February on Jenkins vant, reads as follows: asking wrote the Local Board be re- appeal by In objector. a criminal case classified as a conscientious day United shall lie to a court States On the before induc- his scheduled decision, tion, judgment, from a or he went to the board and re- draft dismissing quested order of a district Form conscientious any or application response information In form. except ap- one representative or more counts no request, to his a Board peal jeop- shall lie where the double advised him to draft a statement brief Although applauded has The in this case was rendered Oc- Act, Sisson, 24, 1972, the new see United States tober and the Government’s notice 267, 307-308, 324-325, 21, 1972, filed on November (1970) ; 26 L.Ed.2d 608 until June brief filed Weller, scarcely n. 1973. This with our no- conforms diligent case and tion of we would ground others herein cited show that amend- dismissed the problems ment all requested. has means solved defendant had so Goldstein, this field. 1064 n. 1973),. that, we admonished 2. The statute also directs: peals U.S.C. Govern- in all shall such cases be tak- ordinarily thirty days decision, be filed within ment’s brief should en within days appeal. order has rendered and after the notice of prosecuted. diligently shall be tionally language summarizing beliefs, If did. could. his score, request Board left doubts on that then denied his report they postponement Jenkins set at rest of 'his induction. report the next of the Senate failed to induction Committee Judici- Cong., 91-1296, day subsequently ary, Sess., 2d returned com- 91st No. pleted Form 150 at 4-13. The here will therefore Board. lie unless Double clause discussion, After extensive the court prevents appellee’s interference with that “The concluded indictment this acquittal. question, To determine that is dismissed and is case merely we must not look familiar discharged.” Recognizing in Ehlert that unilluminating but words of the Double 402 v. United Jeopardy clause, any person “nor shall April 28 L.Ed.2d on decided subject be the same be offense held Court had limb,” jeopardy twice of life or local boards need not con- that consider background, but also to historical by regis- scientious filed claims proceedings leading adoption to its as they after trants receive their induction part Amendment, of the Fifth and orders, ruled Ehlert that course of decisions thereunder. given not effect should be retroactive late-erystal- this case and that Jenkins’ precise origin protec- While the lizing objection claim was conscientious against unclear, tion double is charge a valid defense to the criminal very it is certain that the notion old.3 under this court’s decision apparently The Greeks con- treated the (2d Geary, 368 144 Cir. F.2d cept part primitive of a res form of 1966), disapproved, which Ehlert 402 U. judicata. B.C., In 355 Demosthenes 101 at n. 91 28 L.Ed.2d S.Ct. S. stated, “the forbid man to laws same 625. Government contends that be tried issue, twice it a same be ruling contrary our recent action, scrutiny, civil a a contested Mercado, in United States v. anything claim, or else of the sort.” (2 applied 1973), we in which 1962). (Vance Demosthenes 589 trans. registrant Ehlert a a conscien- with recog- Corpus Justinian’s Juris Civilis objection allegedly tious claim special applicability nized the crystallized after notice of induction. principle proceedings criminal argues Appellee that Mercado is distin- through governor maxim that “the guishable. However, not reach we do permit person should not the same to be since, hold, we are as we again accused of crime which he has jurisdiction without to entertain acquitted.” Scott, been The Civil appeal. Government’s (1932) Similarly, Law 17 law canon early declared that rise “there shall not II. up affliction,” precept a double Appellant asserts, appellee and does apparently was based on the notion dispute, Congress not intended to punish God does not same twice for extend the Government’s Illinois, in criminal offense. cases as far as it constitu- Bartkus v. future, among Black 3. Justice “[f]ear characterized the and another all nations ” governmental try Jeop- power Bachelder, abhorrence is the same.’ Former people ardy, twice for the same conduct” “one Am.L.Rev. 748 of the oldest ideas found in civiliza western Illinois, 121, 151, judgment upon tion.” Bartkus v. law the Under Roman 676, 696, (1959) accuser L.Ed.2d action between defendant (Black, J., dissenting). apparently binding against A nineteenth centu not a second was ry further, party asserting commentator first ac- went even accuser who not principle part tion, “the is a least of that univer or at who was not aware that reason, being brought. justice, conscience, sal first thing Scott, supra, Cicero said: ‘Nor is one 17-18. Athens, Rome and another one now and Coke, 152 n. 3 L.Ed.2d same crime. See Institutes (1959) (Black, J., England ed.); dissenting). the Laws of 213-14 principle Hale, lated that clerics could Pleas of the Crown 240-54 punished king’s (Dougherty Reprosecution courts hav- ed. acquittal permitted, tried canon after an law was how major dispute ever, erroneously source of if between first ultimately Henry II; charge Becket and Beeket failed to an offense. In Vaux’s prevailed, posthumously. Case, (Q.B. Pol- Eng.Rep. albeit Coke English Maitland, History 1591), lock and A it was held the first (2d ed.1899). Law thir- dictment was 448-49 deficient failure to charge century, reports, teenth felony as Braeton all the elements of the against prosecutions multiple brought bar as- second indictment was for the grim urgency. offense, acquit sumed plea a rather Since same of autrefois many criminal offenses were tried be bad even wronged battle party between the and had objection not resulted from an alleged offender, it applied the was evident that the indictment. A different rule prosecutions ultimately a series of in the case of an error of law committed produce against by a “conviction” all but the court in the course of the trial. combatants, enough “ap- the hardiest if Even if the lower court’s error was pealors” willing try were hands egregious, their such aas mistaken direction by at the en- felony case. Once the defendant had the the was not day dured one such “one and trial for deed committed on the named in the wound,” wrote, dictment, one Braeton de- “he will or an erroneous determination against part regards quit all, alleged the proved also the conduct did and king’s thereby suit, proves felony, because he not constitute a against all, plead acquit his innocence he could to a second autrefois country had himself on the and indictment. completely.” had exonerated 2 him Blackstone’s careful classification of Braeton, On the and Laws Customs pleas the various common law in- bar England (Thorne 1968).5 391 trans. eighteenth by dicates that late cen- the By jeopardy Coke, tury, time of the Lord the nascent the the status of double jeopardy concept begun protection double had four was well settled. complex pleas according Blackstone, mature into bar, law common pleas, prominent acquit, the most were were con- autrefoits autrefoits acquit vict, (former attaint, and convict. attaint autrefois The autrefois autrefoits first, reasoning according Coke, provided on sec- the “a founded any pur- that a defendant ond could block cannot be to a second by proving prisoner previously pose, trial for the in law dead attainder”), acquitted pardon. first In the same offense. Similarly, plainly anticipated terms that Fifth convict a de- autrefois plead language, fendant Amendment’s de- former conviction Blackstone in bar second scribed as a “universal maxim the for the generous emerging on 158- Bracton’s view of tise Evidence at Common Law jeopardy protection double 161 shared however, During century, By his immediate an ac- successors. fifteenth quittal hy centuries, appeal, thirteenth on an trial fourteenth de- least after quasi-criminal jury, again generally fendant’s success in action once barred suit “appeal” preclusive against king, lost and an on an indictment could effect appeal. subsequent subsequent pleaded king, suit ver- be as a bar to and vice sa, although Kirk, During “Jeopardy” the Period of the success on would still appeal, Books, bar a second 607 and success on an Year 82 U.Pa.L.Rev. prosecution by (1934) ; Friedland, 9 dictment would bar a second Double (Nicholas 104 crown. See 1 Britton 1865) ; Thayer, Preliminary trans. Trea- A 872 (6th 1788); England, Chitty,

common law of that no man is ed. The Crimi brought 1836); (Am. into life nal Law ed. Ste phen, more than once for offence.” New the same Commentaries on the Laws England Blackstone, (1845 ed.). Commentaries the Laws See also ed.1873). England (Sharswood Sanges, 335-36 protection (1892). Coke, As the time of 36 L.Ed. 445 During only period, was afforded the defendant could same defendants gradually legally rights first have been convicted on won broader Blackstone, supra, Through 1660’s, indictment. 4 n. 5 from a conviction. (Chitty). King’s the court of Bench refused to grant defendants to a new respects, however, In two critical first, proof of error changed between seventeenth Lewin, Eng.Rep. Rex v. 2 Keble eighteenth centuries. (K.B.1663); Marchant, 2 Ke Rex v. King’s disapproved Bench earlier cases Eng.Rep. (K.B.1663), ble permitted that had the crown to seek a in the next decade the court re acquittal. new Rex trial after an versed its stance and decided that a de Read, (K.B. Eng.Rep. 1 Lev. fendant could have a new trial 1660). Although ruling was made least some La circumstances. Rex v. well-respected over the dissent of a Eng. Collins, tham & 3 Keble position judge, stuck to its Rep. (K.B.1673); Cornelius, Rex v. increasing with confidence later cas 525, (K.B. Eng.Rep. 3 Keble 84 858 g., See, Jackson, es. Rex 1 e. v. Lev. 1675). Nonetheless, there were still Eng.Rep. (K.B.1661); 83 330 Rex strict limitations defendants’ Holt, Fenwick & 82 1 Sid. rights. eighteenth century, Even in the Eng.Rep. 1025, (1663). also 1027 See capital in of cases the defendant’s writ Abridgement Viner, 21 A of General error could the not be taken without By Equity (1793).6 Law and 478-79 king’s permission. Wilkes, 4 Rex See Blackstone, appears the time of it that Eng.Rep. Burr. 340 98 although king theoretically per the was (K.B.1770); Ailsbury (Anon Case bring mitted to of when the writ error ymous), Salk, Eng.Rep. appeared record, error on the face of the (K.B.1699). United States v. Gil Friedland, Jeopardy Double Cf. bert, (No. 15,204) (C.C. 25 F.Cas. 1287 prosecution granted the not be could (Story, Chitty J.). D.Mass.1834 noted new trial unless the defendant had ob grant that the court could a new trial acquittal by tained his fraud treach or brought error, ery. defendant a writ of Hawkins, See 2 the Pleas of Crown, 8; 12; only irregu- merits, ch. “Not on the ch. 47 ch. for but § Rep. reporter (K.B.1691), 6. Sir Matthew Hale contributed the to the confu- wrote king denied, sion over whether the have a new that “a new trial for the could that acquittal, said, precedent trial after an since in his influen- there could be no acquittal.” possible. By 1776, in tial treatise he that for it case of assumed shewn gross court, confidently, For in defense errors of law the counsel assert king “whenever, means, Hale commented that the could seek whatever there is prosecution, the in a criminal the versal writ of error and then indict urged drops.” defendant novo. He that such scene is closed and the curtain de case, simply Kingston’s Case, Howell, appellate Duchess the should not of grant conviction, de- enter a but should State Trials trial, possibly fendant “for he hath new exception treachery Hale, 7. Even fraud other his for matter for defense.” (Dougherty Pleas ed. was somewhat doubtful. The text writers the Grown 247 regularly exception pref recited the as the e By 1691, however, King’s rule, reports rable but Friedland that the court of only exception actually ap apparently forgotten Bench had both Hale’s one case was the plied Friedland, prescription inconstancy, acquittal. earlier to overturn and its own Eng. Davis, Jeopardy in Rex n. 4 for 1 Shower Double & formerly convey proceedings.” Chitty, su- tended to what was larity law, pra, that no life should be more eases man’s In misdemeanor at 654. jeopardy than once same discretionary with writ of error was known, eighteenth he in- court, offense.” Yet it was well sisted, end of the observed, entitled century, Stephen that defendant was a writ brought trial, upon more than reversal his “for notorious one could be error original Representative parts or conviction. other mistakes adding agreed, the amend- de- Sherman record.” He added if the might prevent appear as it “he lia- ment stood reversal, won a remains fendant suing defendant from out a writ er- ble same to another being erroneous, offence; ror In defense of own behalf. for the first thereby.” Representative proposal, 4 Madison’s Liv- never was Stephen, ermore stated declaratory fact that the clause New Commentaries stood, England ed.). law as Laws of 456-58 suggested making changes Although history documentary giving impression would risk scanty, clause is Double Congress change the law intended suggests evidence available implication. Congress 1 Annals Rights the Bill of intended draftsmen of (Aug. 17, 1789). import com- into the Constitution the protections they rejected mon much were Madison’s lan- law Senate guage in by Blackstone. more described Madison’s favor of the .traditional clause, employing first he in- expression, version of the common Representa- specifying “jeopardy,” in the House troduced term than rather person punishment tives read: “more or one on June “No than one except Although report subject, shall im- cases of trial.” Sen- perfunc- punishment unenlighteningly peachment, one more than ate debates is tory, language one trial for the same offence.” choice of Senate’s Congress (1789).8 closely In the tracked traditional character- Annals strongly suggests ization the Senate course of the debate the House over Representa- Jeop- proposed to amendments, the intended ardy ensure that the Double argued against protections incorporated tive clause the Benson Madison’s meaning language ground for the common law had on the that its defendants that appeared provide doubtful.” Benson come to more nor less.10 “rather —neither (cid:127) open presumed history may to the The “was leave amendment Shaffer, language, clearly Respublica Dall. 1 rather would v. This which fence.” government (Phil. Oyer prevented appeal & Term. 1 have L.Ed. 116 trial, require’ a new original thirteen 10. The case law in the proposal Maryland’s stemmed from Rights Bill of time the states appeal criminal cases “there be no from insight gives into the further drafted some fact, acquit- or trial after matter of second protection dimensions the common Rights: Schwartz, tal.” The Bill of A 2 B. building they thought into drafters wez-e Documentary History 732 reported The few the Fifth Amendment. appeals problem touching cases language may 9. The have derived Senate’s appeared generally stated cases criminal proposed largely amendment of- prosecution could not assume that to by Ratifying York Conven- fered the New acquittal, peal the de- even from an part, person tion, read in “That no proper circumstances fendant ought put jeopardy of Life or to be twice appeal See Han- conviction. from his 2 B. for one and the same offence.” Limb (Conn. 1789) ; Spalding, 1 86 v. Root naball language Schwartz, supra, The also at 912. (Conn. 1787) ; Kirby Geer, v. Coit closely law formulation tracked the common (S.C.1788). Bay’s Roach, R. 61 Steel as the time. it was understood Haywood Hadock, Contra, State v. recited, Pennsylvania example, Jones, for court (N.C.1802), in State overruled “by (N.C.1809). Murphy man shall it is declared that no Later cases dem- the law century, during nineteenth for of- onstrate the same twice open regard whether it left decision. Rather argue did not framers that the federal acquit- under what circumstances inability appeal an the crown’s authorizing the Gov- part of the merits after a trial tal pass acquittal would jeop- concept ernment of double common law prin- muster. constitutional independent rather as ardy but century but ciple, for a to be followed Kepner v. although clause, incorporated in the (1905), L.Ed. 114 espe- debate, general the cially flavor presented question squarely whether emphasis on defendant’s against jeopardy, provision double retrial, is somewhat to a govern- in an act for the there embodied uncertainty as contrary. However, any. Philippines, ment of Stat. re- disposition case (1902), prevented concerned, solved, we are as far as acquittal at trial. after an Government Kepner, Philippine decisions, we Supreme Court attorney, had been turn. now charge acquitted of of embezzlement court. The Govern- after III. appealed Supreme ment Court Philippines, pursuant local cus- the tom; Jeop- century, the In its Double first acquittal, reversed the ardy relatively posed few difficul- clause Kepner guilty, found him. sentenced prob- Supreme for the Court. ties sharply Supreme A divided Court reprosecu- arise, such lems that did versed the that an conviction and held mistrial, tion after absolutely in the trial court (1824), Perez, (22 U.S.) 9 Wheat. government appeal, barred review verdict, single multiple punishment on a and that under the Double (18 parte Wall.) 163, Lange, Ex clause this would be true in the United (1873), 21 L.Ed. consecutive purported to States even if a statute grant sovereigns prosecutions by different rights. the Government Illinois, conduct, the same Moore v. writing Day, Mr. Justice five Jus- (1852), How.) L.Ed. 306 tices, quoted length from United English courts, and were familiar to the Ball, States v. 1192, applying Supreme clause 41 L.Ed. where heavily relied on the common Court lawy Vauxjs Case, Court, refusing follow analysis. swpra, had held that the Government problem bring could not a new acquitted until did not reach the had been 310, Sanges, States 144 U.S. same indict- offense under a defective 609, (1892). challenged. In ment Al- 12 S.Ct. not he had L.Ed. case, carefully appeal problem the Court reviewed is obvious- England ly prose- the common in authorities distinct from that of a second cution, many relied, in and states and concluded that at Court 195 U.S. enabling express 129-130, in the absence of an from on dictum S.Ct. 797 statute, bring saying, 671, Ball not Government could any appeal at quittal a criminal case from “The of ac- verdict L.Ed. final, below, adverse determination whether not be could viewed, otherwise, the decision on court was based error or without putting jeop- question on a though or Al- [the of fact of law. defendant] twice ardy, thereby violating some on of the state eases went the Constitu- grounds joined by jeopardy, Holmes, tion.” Mr. double the Court Justice adopted ground Justices,11 vigorous rejected two other neither nor filed a practically Justice, dissenting, appar rule 1 became universal 1. The ninth also appeal acquittal. ently agreed majority if state could not from an with the Sanges, the case had arisen in a court within See United States v. federal (1892). Act the United but believed that S.Ct. 36 L.Ed. States heavily Relying dissent. on the defend- 52 L.Ed. 130 category ant’s on to secure a new trial The third also created argued peal conviction, difficulty no expressly from a he lim- since “logically rationally ited a man cannot to cases where “the defendant has jeopardy put jeopardy,” not been be said be more than once in see United cause, Sisson, supra, in the same however States often 399 U.S. at 304- category tried. The is one continu- The second beginning jeopardy, did principle not to the offend that a de- acquitted by end of fendant the cause.” the trier of fact prosecuted again; at 806. not be it related only to a case where the defendant had later, years result of Two as a been convicted and the ruled later Congress passed developments, unrelated he should not have been tried all. Appeals Act, the first Criminal Stat. analysis applies The same to the Act new allowed May 9, 1942, 271, authorizing 56 Stat. appeal the United from dis to the courts of trict or to the circuit court judgment “quashing, decision or set- categories three of cases: ting aside, sustaining or a demurrer or judgment quash- From a or plea any in abatement or ing, setting sustaining aside, or a de- information, any thereof,” or count or to, any indictment, murrer arresting judgment from a decision thereof, count where such decision or conviction, except, case, in either where upon invalidity, is based a direct could be taken Su- upon or construction of the statute preme Although Court. which the indictment founded. amendment, 62 Stat. altered the arresting judg- From a decision wording somewhat, the courts avoided insufficiency ment of conviction for any potential by construing difficulties indictment, where such decision is Act, according not to what the revis- upon invalidity based or construc- written, according ers had tion of the statute the in- terpretation given that had been dictment is founded. prior statutory language. See United DiStefano, From the States v. decision or F.2d sus- 847- taining (2 special 1972); plea bar, Cir. when the United States v. Apex Distributing put jeop- Co., defendant has not been ardy. Since the United States prior could not at all the Crim- category clearly presented first Appeals inal Act of 1907 and since that problem constitutional since it dealt permit appeals statute did not after ac- with cases where a defendant not quittals merits, yet dearth of fed- jeopardy,12 Jus- as Mr. authority problem eral tice quick before us point Holmes was out MacDonald, surprising.13 United States v. Congress change (1971) ; McCarthy was not intended to 27 L.Ed .2d 543 previous cert, Philippine practice whereby Zerbst, 640, (10 Cir.), “the 85 E.2d 642 de- jeopardy terminate, appeal nied, 610, 313, did not 299 were U.S. 57 S.Ct. 81 L.Ed. supreme court, (1936). jeopardy taken to the audiencia or un- 450 The conclusion that body upon commences, til that had acted the case.” attaches when the trial 195 Justice 137, pointed Jorn, 24 U.S. Harlan S.Ct. at 808. out in United States v. supra, “expresses judgment con- general

12. The rule is that attaches policies underpinning stitutional the Fifth jury or, when the is selected in a and sworn guarantee implicated Amendment’s are trial, judge begins bench when the hear point proceedings.” in 400 U.S. Hunter, 684, evidence. Wade v. 336 U.S. 480, 91 S.Ct. at 555. 688, 834, (1949) ; 69 S.Ct. 93 L.Ed. 974 States, 184, 188, adopted variety Green v. United 355 13. The U.S. states have a wide of 221, (1957) ; concerning appeals by prosecu- 2 S.Ct. L.Ed.2d 199 United schemes Jorn, 470, 479, tion, permitting appeal States v. U.S. ac- S.Ct. from an few petitioners Supreme aft The were tried under a The first Kepner valid indictment in relevance a federal court er. is of real 141, jurisdiction States, Fong had over them and Foo v. United subject (1962). over the The trial did matter. 7 L.Ed.2d long prior entry promised criminal terminate to the of to be a what judgment trial, .... It terminated witnesses three process entry judgment with of a final fourth was testified and a judge petitioner. doing acquittal di to each The the district so when Appeals thought, jury verdicts of Court of not without rected the to return reason, acquittal acquittal,14 formal was based and then entered a egregiously judgment acquittal erroneous founda- to all defend Nevertheless, judge what tion. verdict of “[t]he ants. The acted because acquittal credibility final, in and could not be he considered a lack of government’s putting reviewed im . . . without initial witnesses petitioners] jeopardy, proper prosecutor. twice in [the Con conduct thereby violating sidering have the Constitu- action to the trial court’s usurpation judicial power, tion.” been a re mandamus court of issued only Supreme later Court decision acquittal quiring directly problem relevant to our Unit- judge It held that since vacated. Sisson, ed States v. acquittal, power lacked to direct Sisson, sup would not was void and Jenkins, charged like had been acquit.15 port plea of autrefois violating standard with per Supreme brief Court reversed failing App. 462(a) by obey U.S.C. § opinion, relying on the same dic curiam an order to submit induction. After the basis tum from Ball had formed judge had denied motions to various Kepner. said, The Court indictment, dismiss the case went (1962): Although a rather Sis- confused trial. quittal, permitting appeal (1953) (suspension some certain of fine held outside discretion). classes of cases or from certain court trial court’s orders, permitting Although and some what- the Wisconsin constitution con- Miller, Appeals jeopardy clause, soever. See the State tains a double the state su- Cases, (1927) ; preme upheld government appeal Criminal 36 Yale L.J. 486 Mayers Yarbrough, statute, expressly relying Bis Vexari: New & on Justice Holmes’ Prosecutions, reasoning

Trials Kepner. Successive v. his dissent State (1960). Connecticut, Witte, 423, 431, Ver- Harv.L.Rev. 243 Wis. 10 N.W.2d provision mont and Wisconsin have all enacted stat- The Wisconsin permitting repealed years ago recognition utes quittals, the state to from ac- two (Supp. Mary- 54-96 § Conn.Gen.Stat.Ann. decision in Benton Court’s 1973) (1958) ; ; land, Vt.Stat.Ann. tit. 13 § 23 L.Ed.2d (e) 974.05(1) (1971), Wis.Stat.Ann. which held the Double binding pealed, Laws, states. ch. 298 In each clause 25. however, case, the state’s has been defendants, judge 14. The announced strictly limited to law and further errors of acquitted “You have been direction of by rigid procedural cabined restrictions. As bail is termi- Court and the Court. Your result, sparing the state has made use of In re nated. You are free.” appeal rights jurisdictions, in these three 560 Cir. experienced and the diffi- courts little the basis that Aldrich concurred on culty distinguishing findings fact, judge had acted he was certain that solely review, are immune from and determinations im- an erroneous view of because of law, appealed. See, g., which can be e. conduct; proper prosecutorial if the Dennis, State 150 Conn. 188 A.2d 65 belief, because of had directed (1963) (erroneous instruction) ; State credibility erroneous, in the lack however Ballou, (1968) (er- 127 Vt. 238 A.2d 658 witnesses, Aldrich of the acquittal) ; guilty roneous wrote, direction of State aof he would not have been Stang Lines, usurpation power, 286 F.2d at 565. Tank of Wis. N.W.2d might opinion up point testimony the assent that had that some son offered only of four of the Court. members of consci to a claim deemed relevant be 274-275, objection, U.S. at entious pages slightly two There followed over case L.Ed.2d S.Ct. in alone Harlan wrote for Justice jury on the submitted 288-290, majority, at to submit refusal whether Sisson’s began by saying: at 2129. These brought jury wilful. duction was underlying our The same reason guilty there The defendant verdict. this not a conclusion that judgment, upon F. moved to arrest arresting e., that —i. ground that because on the R.Cr.P. disposition con- is on factual bottomed alleged illegality of the Vietnam of the in the indictment not found clusions war, jurisdiction. Not the court lacked of evi- instead made on basis purport claim, passing on the court this trial —convinces dence adduced at the ground judgment” on the ed to “arrest fact ac- us decision was that that the court that had satisfied Sisson quittal aft- the trial court rendered objections genuine to com moral he had guilty. jury’s of er the verdict to com and that service Vietnam bat propounded hypothet- then The Justice pel would vi him to render such service except ical similar Sisson case provision of the Exercise olate the Free jury judge to ac- the trial instructed and the Due Process First Amendment they quit find- if made factual the same The court ruled of the Fifth. Clause ings had Sisson 6(j) Service also that Selective § post-trial opinion. in its If reached 456(j), Act, App. violated 50 U.S.C. § jury acquitted, Harlan then Justice had opin In an Establishment Clause.16 wrote, its there could “no doubt be Harlan, ion Mr. Justice appeal- acquittal verdict not be ap the Government’s dismissed how erro- ed under 3731 no matter peal jurisdiction. want theory underly- neous the constitutional opinion ing Harlan’s instructions,” Much of Justice despite demonstrating that, original). (emphasis devoted at 2129 S.Ct. language, quotation district court’s order This was followed “arresting judg- concerning was not fact .one Knox the remarks Senator insufficiency ment conviction for the Criminal the bill that was to become saying, Appeals Act, information where Cong.Rec. upon the invalidi- such based decision is inter alia: ty or construction of the statute the risks of all takes The Government or information which the indictment prosecuting of its the mistakes offi-j founded,” language the trial and cers trial,\ on two time. This conclusion rested give only proposed it an' (1) can be ar- bases: “that a appeal upon questions raised of law only appear- error rested on the basis of the trial and defendant to defeat record,’ on the of the ‘face (Emphasis it defeats trial. proof trial,” offered at basis of original). 2125; U.S. at arguable still be all It would (2) decision was the court’s adverse of construction was directed to the issue indictment, insufficiency not for of the Appeals Act. But Criminal 287-288, U.S. at then Justice said: opinion stopped 608. If the L.Ed.2d there, bearing on the it would have little statute, is, Quite apart from the not, course, instant But it did and for an case. settled that an well reviewed, important portion or oth- on error can “not be reason —the erroneous, later held Gillette v. The district court’s views were erwise, putting jury nullity defend- without trial and [the had resulted thereby jeopardy, judge, twice and trial to the judgment who had rendered a ant] violating

the Constitution. on the merits. acquit- country a verdict of Even this action was based on an [I]n although judg- tal, by any legal ground, Jeop not followed erroneous ardy the Double ment, prose- subsequent prevented is a bar ato clause In new trial.17 offence,” deed, already Fong interpreted cution for the same United we have 671, Ball, 662, precisely States v. U.S. Foo mean Sisson to this. 1192, Weinstein, 41 L.Ed. 300 S.Ct. United States v. 452 F.2d cert, (2 1971), denied, Cir. passage, In a footnote to that Justice U.S. 32 L.Ed.2d 116 principle Harlan added: “This would (1972).18 jurisdictional dictate that after this dis- missal, may Although Sisson Id. judge be retried.” here char- district S.Ct, at U.S. & n. at dismissal, 289-290 acterized his action as a passage quoted 2129. The analysis Ball clear from Sisson that very Day was the purposes acquit- one that Mr. Justice for double proposition ruling had cited in for the ted the defendant. was His Keener prohib- that the Double developed trial, clause based on facts appeal by ited an apparent the Government were not on the face of acquittal in a dictment, general criminal case and that and which went to the again Fong Court had relied on in Foo. issue the case. The here con- dissent findings tends that the district court’s disposed dif Justice then of three largely undisputed of fact were and not hypothetical ferences between his legal pivotal relevant the Sisson rele case. these Two are question. However, the discussion sec- vant here. It made difference opinion tion of the district court’s makes judge “in this case it —not relying pre- clear that it was jury made the factual determina —who cise circumstances Jenkins’ case tions,” “judges, juries, since like can ac conclude Court’s quit defendants,” decir S. applied sion Ehlert should not be at 2129. Ct. It likewise inconse retroactively to him. court district quential judge that the had labeled construing statute, was not judgment characterization an arrest of authoritatively interpreted had been post-verdict acquittal; rather than a Ehlert, holding that Jenkins did not important what was was what the come within it as a matter of law. It did, not what he said. holding that the statute should not pages opin These of the Sisson applied to him as a matter of fact. dispositive ion seem to us to be judge’s instant case. In essence the Other courts of have followed post-trial ruling in inquiry Sisson had made a similar course of in determin- nothing seeWe in Justice Harlan’s treat 18. We are unable to understand com- what Covington, ment of United States 395 U. fort the Government derives deci- (1969), sion, dismissing S. where we vacated order opinion, subsequent in footnotes 19 and 56 of his to al an indictment to a power. ter beyond judge’s this conclusion. The decisive distinction conviction Covington, Foo, Distinguishing said, was that Fong district we 452 F.2d dismissed sufficiency, indictment n. 10: before evidentiary hearing problem without There is no similar here. Vaca g dismissing need for one. The same was true the order tin R.R., simply United States v. Boston & Maine leave the of con unimpaired, subject L.Ed.2d viction whatever Grunberger which the dissent relies. See with re remedies Pecora, spect also United States v. 484 F.2d to it. 1973) ; acquitted, at 1293 if erre Jenkins has been even neously Supply, Martin Linen so. (5 Cir. undergo trial, ruling to of a second burden should whether a trial court’s simply judge be directed acquittal. since the would In deemed an United be (9 of law McFadden, alter his conclusions to erroneous F.2d 484 v. States non-retroactivity respect 1972), limit with a the court considered Cir. very objection Ehlert United claim v. ed conscientious (1971), in Sisson. S.Ct. to the one at similar light v. Finding our in United States had dis the trial court that 1973), Mercado, (2 478 F.2d 1108 on the basis Cir. the indictment missed trial, only lie vexation would Jenkins’ introduced at evidence being acquitted. than had ac convicted rather held that the court Ninth Circuit quite defendant, matter he could We are not certain the quitted and that recog simple By contrast, in Mercado we that since Seventh not be retried. possibility recently rejected successful de claim that nized of a a the by Circuit registrant rea an ac in fact fense “a who arrest of constituted good Esposito, sonably the case relied in faith on quittal. v. States United cert, knowledge 1973), petition (7 that local law or Cir. F.2d , — —, a L. circuit would consider boards 94 S.Ct. this filed objection claim,” in belated conscientious Ed.2d Esposito The trial court that, apart il of But offense 478 F.2d at 1111. had held that legal possession co trial the absence of need for a second distribution Congress distinguish has not Sisson. As Mr. caine was “not one would dissent, power prohibit pointed at a in the manner out in Justice White appeal, tempted 21 U.S.C. 841.” On on the basis that the reversal there judge’s court, legal theory de judge’s held the trial that was incorrect would jury’s ad simply on facts cision had been based ver not meant that “the have opinion trial, solely longer guilty duced at on his dict of —with simply was unconstitutional. that remains effect.” ‘arrested’— 399 thermore, although slip opinion page wrote, that at 2150. Fur U.S. at 90 S.Ct. must decide what we that clear from the order us, the Government is the case before defect the fatal court concluded ruling sought limited to bench not a has lay prosecution in the indict- in the acquittal can traced where an be trials and the stat- ment’s state failure and no law demonstrable error a require nexus with ute’s failure to a hearing evidentiary is needed. further jus- interstate commerce which would amended Criminal It asserts regulation. tify fact that federal every Appeals entitles it to Act prove a such failed to can be demonstrated or- in the connection alluded to error der, significance the result of an the ac- be was of no Boldly up problems, judge. facing to its tual basis for the decision.19 that the Dou contends the Government argues The Government read require clause should Jenkins ble reversal here not cert, (6 Cir.), denied, 413 U.S. the cor F.2d 606 We have no occasion to consider L.Ed.2d rectness of that have extended decisions analysis pre-trial rulings. the Government court held that United dismissing 1971) pre-trial (7 Ponto, order from a not States v. 454 F.2d 657 Cir. (en had made banc), sharply the trial court an indictment when held that divided court ruling of information on the basis Government could not than pre-trial file rather granted selective service defendant’s dismissal because sufficiency simply of the on the basis of ease re felt the circumstances Hill, v. quired also United States indictment. See selective service the defendant’s (court’s 1972) (9 reopened. Cir. F.2d classification should pre-trial materials were McCreery, determination F. also v. See United States ruling that the de- (7 1973) ; amounts to not obscene 2d 1381 Cir. guilty 1973). (4 and thus barred Ry., not fendants were Southern 485 F.2d 309 Cir. Rothfelder, peal) Similarly, . Goldstein, permit on an erroneous retrial even dealing with We likewise are struction, re position Harlan Justice jeop- where a trial is aborted after Sisson, cases jected out-of-hand ardy a conclu- has attached but before L.Ed.2d 608. We guilt, of which Illi- long Kepner sion of innocence that, and Sisson so think Somerville, 458, 410 U.S. 93 S.Ct. nois when v. stand, a retrial forbids the clause (1973), 1066, is the lat- 35 L.Ed.2d 425 rendered has the facts ever the trier of long deci- in a line of est innocence “on legal determination reaching to sions back United States trial adduced of facts basis (22 Perez, U.S.) (1824). 9 general Wheat. 579 relating of the case.” dealing case, Finally, are not with a we 19, at 2130. 90 290 n. S.Ct. 399 U.S. Report, such as that cited Senate this: of the matter The short 12, post- supra, where the defense Kepner acquittal on the held that an swearing poned jury until after general appellate court issue barred a motion to an indictment which dismiss entering judgment of conviction before, could as well been made Philippine prac appeal. Since problem presented with the the deci- proceedings were re tice no further 19. hold sions cited footnote We below, quired the decision belies acquitted when a defendant has been Jeopardy the Double clause view that merits, trial on the the Govern- only against protects vexation of a judgment, ment cannot from the Fong Foo held that a di second trial. allegedly even for an demonstrable error acquittal rected barred a retrial even long judge, of law so as the Su- plain was when it was preme Court adheres to the dictum in judge. by clear error of the occasioned Kepner Ball and the decisions guilty Sisson held that when a verdict Sisson. judge’s had been nullified decision ju- for lack of dismissed merits, acquit Jeop to Double ground risdiction on the the Double prevented ardy appellate clause Jeopardy prose- prohibits clause further directing entry of a cution. cannot see how in the conviction. We presented the circumstances here Gov Judge (dissent- LUMBARD, Circuit way through ernment can thread a this ing) : long thicket so as these decisions stand.20 Judge Travia final to make clear After a trial before We add a word jury in District what we have not decided. are not without a the Eastern We charging dealing York, with of New the indictment Government violating attached, 12, 50 U.S.C. before see fn. Ronald Jenkins with has 462(a) App. comply Crutch, for failure to with 461 F.2d as United States v. cert, (2 Cir.), denied, 883, into the induction 1200 409 an order submit U.S. 172, (1972); In dis- armed forces was dismissed. S.Ct. L.Ed.2d discharging missing Castellanos, the indictment F.2d Judge (2d defendant, concluded 1973); Travia Cir. and United States Prosecutions, Harv.L.Rev. and Successive Reexamination the dictum Ball Appeals by (1960) ; Miller, underlay Kepner, Fong the State 8-15 Foo and Sisson (1927). Cases, desirable, particularly 36 Yale L.J. 486 in Criminal well be now that Any Jeopardy have to also such reexamination would Double clause has extended implied principle ac- Maryland, take account of the to the states. Benton v. quittal developed v. United Green 89 S.Ct. Cardozo, writing L.Ed.2d Mr. Justice 8-man Hetenyi majority (1957), Connecticut, ex rel. and United States Palko v. 302 U.S. 1965) Wilkins, 149, 151, L.Ed. cert, denied, (Marshall, J.), remarked much to b “how e May But this Kepner L.Ed.2d 667 said” for the dissent. See also power beyond Yarbrough, an inferior court. ers and is far our Bis New Trials Vexari: determining government’s right had not been violated since law appeal.2 report required If his should more ac- Jenkins curately post-induction have been described as an ac- notice induction while his quittal, request then the Double Clause for reclassification consci- appeal. prohibit pending. this On the oth- was still On entious argued hand, Judge government appeal, er Travia’s characteriza- proper, interpretation tion is then there is Travia’s con- no obstacle government trolling clearly to further erroneous. deciding actually issue, the this case.3 Without this majority panel now holds that determining underlying identi- appeal, has no ty judge’s decision, we permit it to so since do would be should consider first United States v. jeopardy. in double Sisson, reasons, join (1970). two am L.Ed.2d 608 For I unable to That in- case also concluding majority gov- the that volved a refusal the submit induction appeal on the of ernment’s is barred the basis a claim for conscientious present by Jeopardy case the Double status. After a trial and a Judge First, jury guilty, Judge Clause. I believe Tra- of that verdict District precisely Wyzanski decision via’s was what he stated that the indictment it, indictment, against “charge termed of a dismissal the Sisson failed to an of- government ap- an order from which a fense.” Based on the evidence adduced peal when, barred, here, trial, particular, is not the the demeanor defendant, judge dismissal is based on a of construction of the the concluded upon “sincerely the statute which the is that indictment Sisson awas conscien- Second, 18 U.S.C. 3731.1 gen- founded. it tious man” and that of § because my majority’s firm belief killing, that the in- uine interest in not the Free Ex- application Jeop- flexible of the prohibit- Double ercise and Due Process Clauses ardy unnecessarily application Clause the ed frustrates of the 1967 draft act granted fair justice. Accordingly, administration of criminal him. the de- judg- fendant’s motion an arrest regard With to the first these ment. points, couse, is, true, that Travia’s directly Appealing characterization of his Supreme decision to the government as a Court,4 dismissal of an indictment not does claimed the the that conclusively jurisdiction make purposes it that for of Court had under “ar- the provides 1. upon 18 U.S.C. § that: statute which the indictment or infor- appeal by In a criminal an case the mation is founded.” Unit- ed States shall to a lie court Sisson, 2. As United States v. decision, judgment, from a or order aof dismissing district court an indictment clear, appellate makes the court must look counts, information as to one or more by label behind the used the trial except appeal that no shall lie where the true determine the nature of his decision. double clause the United 3. The rationale for this distinction treat- prohibits pros- States Constitution further acquittals ment of of indict- dismissals ecution. ments arises from fact that a dismissal present except § version of upon invalidity based or construction eliminating government’s right appeal on statute which the indictment directly Supreme to the Court de- placed founded was not considered to have court, cision of a district in all other jeopardy, since it not spects appeal leaves intact M. determination the merits of case. government which the had under the former Friedland, Jeopardy 1n. Double 63 & 63 version p. supra. of the statute. See government Under that former version the appeal dismissing from a decision an 4. Former 18 U.S.C. under which the brought, permitted “where such decision is based in Sisson was upon invalidity by or construction Court direct resting judgment” provision 99 L.Ed. 594 Act, Appeals 3731. Criminal 18 U.S.C. § Supreme Court, however, refused to genuine as a arrest of Just maintaining appeal, hear government permitted ap- would although desig- judge’s decision, district peal so, Sisson, too, under § judgment,” him an “arrest of nated have allowed an was, fact, acquittal, an which was un- genuine peal dismissal of an government appealable clear, But Sisson dictment. makes addition, In the Court reasoned appellate before an exercise being acquittal, jurisdiction, inquire it must into the was further barred judge’s real nature of the trial action to the Double Clause. make certain that barring appeal. Thus the crucial consid- concluding Judge Wyzanski’s jJiis 'inquiry eration in is whether judg- had not decision been an arrest judge’s merits, on the ment, acquittal, but rather hinge is, did it adduced facts emphasized disposition independent- rather was it made triaLor had been case “bottomed on factual con- ly, “on the face the record.” In Sis- not found in clusions the indictment but Wyzanski son, Judge clearly relied made on instead of evidence basis trial, and, particular, the evidence trial,” especially adduced at the the de- on the demeanor of In the defendant. meanor of the The defendant. Court granting judgment, an arrest of he first (cid:127) clear, however, made that had the dis- finding made a on the factual judge granted trict the motion instead sincerity Sisson’s as a conscientious record,” is, the “on face of the objector. the basis the indictment failed to Judge Travia’s dismissal of the indict charge any law, violation of the the rul- against Jenkins, hand, ment on the other regarded could have been as an ar- essentially legal was a determination government rest of and the construing the statute on which the permitted would appeal. to App. dictment was based. 50 U.S.C. § g., 462(a).5 Wyzan- See, Bramblett, Judge In contrast e. to States v. government registrant involving arresting in from of the a case occu- a decision pational deferment, request is ac- of conviction as if such as one dis- well missing companied by presenting indictment, an facts such information “where upon registrant invalidity is based when was not considered or construction classified, justify upon which, true, if the statute would the indictment or- classification; present change registrant’s information in the is founded.” ver- upon (b) government sion of or its own motion if such action § under which the appeal longer upon permits seeks to in Jenkins is based facts not considered when no which, Supreme registrant direct was classified from regis- true, justify change However, the district in the court’s decision. as noted, respects classification; provided, either has been trant’s in all other registrant government appeal. event, leaves intact to classification of a p. supra. reopened shall board See not the-local registrant to has mailed to such an Order 252) Judge Report (SSS Specifically, Travia of the view for Induction Form No. was making Report App. 462(a), an U.S.C. it a or Order for Civilian Work comply Employer (SSS Form crime to fail with an induction or- Statement qualified spe- der, 1625.2, 153) No. unless the local board first 32 C.F.R. change provided cifically finds there has been a registrant’s resulting may reopen The local cir- board consider status from registrant (a) registrant had anew the over classification of a cumstances which the request registrant, the written no control. any person Judge view, provision agent, In Travia’s re- regis- dependent who claims individual his no- to be a lieved an who had received trant, any reporting long person as on file a tice for induction who has so request request pending. his for reclassification for deferment written the current required “on the face of the would have been ski, was not Travia genuine record” and dismissal any in order to thus factual issues resolve indictment rather than It true that reach decision. findings on the merits. of fact. did make nine bearing these, what- six But admin- do harm to fair We serious legal issue, pivotal whether ever on justice when we be- istration criminal required pertinent or not the point requirements to the labor technical report if his for induction individual of three in- inclusion or omission where request, for post-induction consci- notice nocuous, uncontested statements pending. objector still entious status ultimately whether determine findings Indeed, undis- were six these government may appeal event, puted. the Sisson judge’s decision in criminal case. discussing United States Court noted govern- penalizing would also be We Halseth, 275, 96 72 S.Ct. following a well-established ment par- even where L.Ed. 308 unquestioned and until now rule stipulate go not facts ties so far as need not the entire fac- dictments state purposes indictment for contained background case, sim- tual dismiss, will lie of a motion to language ply al- of the statute track long stipulation “the facts so and, addition, legedly do little violated legal issue.” 399 were irrelevant place than time and more state 90 S.Ct. at 2127. 7(c); proximate F.R.Cr.P. terms. See Fortunato, 402 F.2d findings of fact sim- The other three cert, denied, (2d 1968), ply established appropriate quested returned the claiming conscientious form findings decision Unit- Court’s some bear status. While these Co., Boston & Maine R.R. judge’s ed States v. ultimate con- relation the trial 13 L.Ed.2d need clusion of law—that Jenkins support during offers substantial reported the for induction have involved an request views. That case pendency for these for reclassifica- of government from a hardly dis- represent the they sort of the tion — of indictment of one count the missal for the decision foundation Clay- time, charging the findings 10 of for a violation of § in At no Sisson did. prohibits any Act, commercial example, to re- ton which the court called dealings by in regarding carrier common whether solve a factual greater $50,000 with anoth- application than amount the for reclassification enterprise in officers the' actually filed. To be er had Jenkins “any interest.” sure, government substantial the time of the carrier have the charged fully had I of the indictment aware Count return of the indictment was three Maine R.R. and request reclassification, hav- Boston & that the for ar- had service of its officers violated'§ had his selective access to equipment easily ranging railroad a sale of file. The $50,000 to the Inter- claim for conscien- in excess of made mention of that valued Corp., Equipment in Railway in the indictment. tious status national in- done, a “substantial would be Had that been there officers Judge Travia’s decision doubt but terest.” Taylor, 1966), 351 F.2d 228 v. This in the law in the United States view was conflict with position adopted (6th 1965), time, and the Circuit at v. Cir. Second United States Supreme Mercado, 1973), the date Jenkins 478 F.2d 1108 Cir. induction, report weight authority circuits, but before e. to for the other g. States, decision. United States 422 F.2d 332 Travia’s Ehlert v. United (9th Ehlert, 1970), 28 L.Ed. Cir. Davis v. United (5th 1967), Al F.2d 1 2d 625 Cir.

Majied (4th Muhammed, rule, recognized judge one that should that the not an abstract The trial light applied adapted with- be dictment itself was sufficient to totality partic to of circumstances of each stand defendants’ motion dismiss. Judge Friendly’s presented thor on information ular As But based case. granted oughgoing history particulars, re of the Clause the bill of veals, particulars motion. had de- its evolution 'has been clouded The bill contradictions, inconsistencies, cited interest” with scribed “substantial consisting of an the indictment It would be serious uncertainties. among agreement rigid slavishly to defendants use mistake adhere produce profits application pro their In- efforts to this fifth amendment Railway they ternational and that would tection. An rule unalterable get profits. govern then a share of these On Double all Clause bars description, acquittals, of this the court ment basis fails to weigh against very found no violation of 10 since “sub- individual’s meaning proper experiencing stantial within the interest” interest in not anxiety, the statute was “limited to one who has expense, harassment that a legal present buy- then brings, equally interest second trial consider ” ing corporation govern- society . . fair, just, . interest able appealed directly Supreme ment and sensible administration of criminal Court, justice. Only term, Court under 3731 and the with- last expressing out Somerville, reservations as its Court in Illinois jurisdiction, ease, reviewed the ultimate- L.Ed.2d 425 ly vacating judge’s (1973), rejected the trial decision and the notion that techni remanding resulting for further consideration. cal errors in a mistrial should reproseeution. cases, bar In such Just as Boston Maine & R.R. public justice” “ends of demand that charged here criminal of purpose law, protect society “the fense; yet, on the basis of certain un guilty from those of crimes [not] be disputed facts not contained the in by denying power frustrated courts dictment, the trial construed the again.” the defendant to trial underlying applicable atU.S. 93 S.Ct. at 1073. particular light case. this sub similarity cases, stantial between the public jus- I believe that the “ends of strong sup Boston & Maine R.R. offers permit will tice” not be served if we port permitting guilty go clearly defendant who is present case.6 judge’s free because of the trial erro- entirely apart But question interpretation from the controlling neous whether Travia’s decision guilty law. That Jenkins is acquit- pear dismissal light indisputable be of our tal, I believe there is still Mercado, another reason United States permitting 1973), F.2d in which Simply stated, my case. we held prior is without reservation that even Jeopardy view that the Double Ehlert,8 Clause is, course, quite 6. time, legal It true 7. Boston & For some commentators brought urged Maine R.R. analysis under more flexible in deter- ap mining the former version of § while the whether the Double Clause peal present applicable par- case has been un raised to the circumstances of a case, gee Nevertheless, der generally Mayers the amended § 3731. ticular Yar- & majority opinion correctly suggests, brough, Bis Vexari: New Trials Succes- way amendments Prosecutions, (1960) ; were in no sive Harv.L.Rev. government’s Note, tended to Jeopardy, restrict Twice 75 Yale L.J. appeal. Thus, if an could have been brought prior under brought the amended version of 8. 402 U.S. p. supra. Ehlert, statute. See Court held law of this circuit an individu- although report for induction al con- claim post-induction notice pend- was still status scientious

ing.

Accordingly, order vacate the I would remand for below

of the court

proper application the law.

SECRETARY OF LABOR OF the UNIT- al., ED STATES et Defendants- Appellants, FARINO and

Phil Hoe Kow Cantonese Restaurant, Plaintiffs-Appellees.

No. 73-1071. Appeals,

Seventh Circuit.

Heard Oct. 1973.

Decided Dec. comply individual, that an individual crystallized must -with whose beliefs had post-induction notice even induction, duction between notice and en- request prompt notice reclassification as a con- to a titled in-service determination yet scientious has not been decided. his claim.

Case Details

Case Name: United States v. Ronald S. Jenkins

Court Name: Court of Appeals for the Second Circuit

Date Published: Dec 11, 1973

Citation: 490 F.2d 868

Docket Number: 79, Docket 73-1572

Court Abbreviation: 2d Cir.