United States v. Sisson

UNITED STATES SISSON v. January 20-21, Argued

No. June 305. 1970 Decided Solicitor General Griswold for argued the cause United him States. With on the brief Assistant were Wilson, Jr., Attorney Beytagh, General Francis X. Rosenberg, Beatrice and Roger Pauley. A. Flym

John G. argued S. and filed a brief cause appellee. of amici filed William Smith by Briefs curiae were G.

for the Los Angeles Panel; Service Law by Selective Norman Leonard for the Panel Lawyers’ Selective Service of Francisco; by Joseph San B. Robison for the Ameri- can Congress; by George Jewish Samuel Rabinove and Berlstein for Committee; the American Jewish by Schwartz, Herman Karpatkin, Marvin M. and Melvin L. Assn, by for the American Humanist Leo al.; et Wulf Rosen, Greenbaum, Edward S. F. Nancy Wechsler Union, for the American Ethical Frank P. pro se. Slaninger, of opinion delivered the Harlan

Mr. Justice Court.* appeal seeks to to this Court a deci- Government in holding

sion a District Court Massachusetts criminally Sisson could not be convicted for appellee the Armed induction into Forces. TheJDistrict refusing on was bottomed what opinion Court’s that..court-under- Part joins only opinion. *Mr. Justice Black IIC of this Mr. BrenNAN, Stewart, Mr. and Mr. Mar- Justice Justice Justice join opinion. shall the entire nonreligious as a rights of conscience to be

stood Sisson’s general, in war, but not wars objector to Vietnam of Clauses Establishment Free Exercise and under the of the Due Process Clause Amendment and the First of the United Amendment Constitution the Fifth primary conclusion, reached The District Court’s States. prohibited trial, after a full was that Constitution 1967 draft act to Sisson application “the of the be- him to render combat Vietnam” require service interest man,” conscientious Sisson’s “sincerely cause as “the outweighed Vietnam conflict killing not him employed,” need for to be so country’s present Supp. 902, (1969). F. own

The District Court characterized its decision review judgment, an arrest and the Government seeks pursuant provision here to the “arresting judgment” Appeals Act, § U. Act the Criminal S. C. narrowly limits the Government’s right types criminal cases to certain decisions. On Oc- 13, 1969, postponing tober this Court entered an order jurisdiction further question consideration hearing merits, the case 396 U. S. follows, we (1969). For reasons that elaborate what below, depending we conclude that the decision as it does developed trial, facts Sisson’s an arrest but instead is a directed As acquittal. such, it appeal. is not a decision that the Government can Con- sequently, juris- must dismissed for lack of diction without our the merits of considering this case. We, course, of intimate no view concerning correct- by legal theory ness of the which the District Court developed evaluated the facts at the trial.1 today granted (No. have in Gillette v. We certiorari United States Negre (No. 1170), 1669, Misc.), v. Larsen and order to consider objector conscientious issue that “selective” underlies the case now before but which we cannot reach because of our us conclusion jurisdiction appeal. no we have to entertain this direct predicate As our we no conclusion that have jurisdiction appeal, entertain the a full Government’s of statement proceedings below is desirable.

I A single-count charged indictment that Sisson "did unlawfully, knowingly wilfully and fail neglect and perform duty” imposed refuse to by Military Selective of Service Act 1967 and its regulations, vio- of Act, lation 12 of App. § 50 U. Stat. S. C. (a) (1964 Supp. § ed., IV), obey because he failed to an order his local draft board to submit to induction. trial, Prior to attorney Sisson’s moved to dismiss the indictment on three grounds. It was claimed that justified Sisson’s refusal submit to first, induction was because government’s military “the involvement Viet- nam violates international and, law”; second, because “reasonably Sisson believed the government’s military involvement Vietnam to be As illegal.” ground, a third Sisson claimed that the Selective Service Act and its regulations were (a) unconstitutional the pro- because cedures followed local boards lacked due process; (b) compulsory conscription because during peacetime unnecessary personal and stifled fundamental lib- support In appellee erties. the motion to dismiss, stated: I

“At the time refused to submit induction into the armed forces I I believed, today, as believe military the United States involvement in Vietnam illegal international law as well as under the Constitution and treaties the United States. then, I my partici- believed and still believe, that pation that war would violate the spirit and the letter the Nuremberg Charter. On the basis my knowledge war, I could participate in it without violence to doing my dictates conscience.” motion to dismiss, appellee’s hearing

At the open “an mind” con- he had said that Judge District grounds. However, third first and cerning appellee’s ground, “nothing to” second said there was court reasonably . . defendant believes . that what “the noting because way you propose that . . . in the cannot be raised of the indictment.” not on the face appear that does amplified con- later this 49.) The District Court (App. saying: clusion nobody premature because plainly

“Point 2 whether defendant reason- can test the issue military ably involvement government’s believes knowing what he rea- illegal Vietnam is without question he believed is a sonably and what believed, question appears which evidence (App. 52.) (Em- the indictment.” face of phasis supplied.) dispute did not the District Court’s

Defense counsel his analysis, he had raised the and noted that issue economy,” “in the motion to dismiss interest clear at the time I filed the motion because was not “[i]t challenge (App. would this fact.” government expressed The court doubts the Gov- 52.) concerning fact, and, willingness ernment’s concede this when court, government specifically asked counsel opposition stated his to the motion to dismiss. thereupon court found the ground” “second the motion to dismiss without merit.

A short time after hearing, District Court opinions, Supp. issued two written F. 511 and 515 (1968), denied the grounds other of the motion to After appellee dismiss. determining requi- had the standing site to raise the issues involved, the held court question the political doctrine foreclosed considera- tion of whether could Congress constitutionally draft order war, fight an undeclared or could to Sisson allegedly “genocidal war.” opinion

An pretrial order the second accompanying proof also dealt with various offers of that defense court, counsel had made in an informal letter to the that part appears not the record. From the order it appellee’s he “offer evidence to show counsel stated would to on properly that refused be inducted the basis [Sisson] conscience, statutory of his both and constitu- right Not scope tional.” of this rather am- understanding biguous proof, offer of the District Court its order ruled objector if that to a conscientious Sisson wished make objections religious gen- claim based to wars eral but to the Vietnam war in Sisson particular, should initially proof judge make offer of to his ruling “to elicit a whether the First Amendment precludes from Congress requiring one who has objections conscientious to the religious Vietnam war to to the induction order he respond received. favorably If the rules to Court defendant on the law, issue of Constitutional then both defense and prosecution are entitled submit to the trier of evidence fact relevant whether question de- fendant objector indeed is conscientious religious Supp., the Vietnam war.” 294 F. at 519. however, At the trial, appears that defense counsel try prove did not should Sisson have received a objector conscientious nor exemption, did he request a on the First ruling Amendment issues referred to trial court. Instead it seems the defense strategy prove was to that Sisson believed the Vietnam war to be illegal domestic and law, international and that this If belief was reasonable. get adjudi- unable to a direct legality cation of the the defense war, at least requi- lacked the jury Sisson to convince hoped induction.2 “wilfully” refuse intent site that did the trial submitted was evidence There When objector issue, however. conscientious bear induction, emphasized Sisson why he had refused asked He he also said that illegal. the war thought he “un- “immoral,” and “illegal,” war was felt the Vietnam my sense “my best principles just,” against went what The court asked Sisson right.” of what was what was, particularly Sisson basis for his conclusions said he the war was immoral. Sisson meant when said for respect feelings (1) about that the war violated his life, (3) and (2) freedom, human value of man’s and consonant with killing scale destruction Sisson also purposes stated of American intervention. that his stated, response judge’s question, to the trial court “moral values come from the same sources trial [the beliefs.” mentioned, religious writings, philosophical had] testimony The did not allow to prosecution Sisson’s apparent cross-examination. In reliance stand without only theory advancing any Not avoid did the defense or itself objector status, proof that Sisson deserved but there conscientious attempted purposely keep are even that the defense to indications example, trial point the issue out of the case. For at one in the that the Marine for induction stated officer who called Sisson refusing had told him at the time he was induction Sisson objector religious belief, because of and status.” his “conscientious questioned counsel, 143.) (App. Later, own Sisson when his having also denied the conversation with the officer but (1) applied had because he stated that he never C. 0. status honestly objection form could not claim “conscientious to war 150”; (2) “the put as Form and because he believed system unequal exemptions and deferments [to [to be] against who do not have ... or those education discriminate] money.” flatly accept that he therefore “could not Sisson stated 147-150.) (App. such deferment.” pretrial on the ruling court’s concern Sisson’s beliefs ing the war were irrelevant question to the whether his refusal gov submit induction was wilful3 ernment counsel had showing concentrated that Sisson refused will, induction of his deliberately, own free and knowing prosecution consequences. also brought out had failed to his Sisson I-A issued, classification when it had been he had accepted, undergraduate, as an a II-S student classification.

In the final arguments jury, just opening statements, neither counsel mentioned a reli- gious objector nonreligious conscientious issue. The key defense argued that to the case was whether “wilfully” Sisson had induction, refused to submit and tried to his suggest beliefs about the war were rele- vant lawyer this. The government simply pointed operative out the facts of Sisson’s refusal. He also at- sincerity by tacked Sisson’s pointing out the inconsist- ency between broad opposed Sissons’ statements that he they deferments poor, because discriminated against 3 Among proof attorney various offers made Sisson’s “reasonably before the trial was one to show that Sisson believed illegal,” the Vietnam war to be and he therefore lacked the requisite “wilfully” order, pretrial intent to refuse induction. In the judge the trial ruled that: “ ‘Wilfully’ intentionally, as in used the indictment means delib- voluntarily. erately, proves If the Government defendant inten- tionally comply board, refused to with an order of his draft statute, induction, accordance with the open to submit is not it to defendant an regarded to offer as excuse that he the war as illegal, is, contrary to either domestic or Constitutional law wilfully prosecution refusing international law .... a [I]n order, obey respect an induction evidence with to belief is ad- intent, missible extent it upon to the bears as issue good distinguished Supp., from motive or faith.” 294 F. 619. a defer- accept II-S supra, willingness n. and his see 187- App. (See College. at Harvard ment he was while 188.) a reference to jury made no

The instructions was not asked claim, jury objector and conscientious moral beliefs his was “sincere” to find whether Sisson court told the the trial Instead concerning the war. re- case was whether Sisson’s the crux of the jury “unlawfully, knowingly was fusal to submit to induction done,4 deliberating about wilfully” jury, The after minutes, guilty. a verdict brought timely motion made a trial, After the the defendant judgment Fed. Rule Proc. 34 to arrest Crim. jurisdiction.5 lacked on the the District Court ground that had ruled to the fact that the District Court Pointing pre- political question doctrine before trial requiring adjudi- its consideration defenses an vented defense legality war, of the Vietnam cation key given was follows: instruction as Jury right only question “The which as matter of law a has if perform the defendant he failed to to consider whether required regulations acting know- act under the statute awareness, wilfully ingly of with mental sense [and] intentionally sense of and with free choice. may ethical, religious political,

“He all he likes of have the views legal They may as sometimes nature. reasonable dissents majority Supreme Court are reasonable and sometimes the reasonable, long Opinions are but as as the law stands as now motivation, good his his and the like not in the stands faith are question guilty (App. least relevant he is or not.” whether 193.) a motion in Defendant first submitted arrest of days days March 26—five after Two later substituted the trial. he original an amended in “in of” This motion arrest lieu his motion. original. first amended motion differed in detail from the Both jurisdictional argument were on text and based described any neither on or Free made claim based the Establishment Exer cise Clause. jurisdiction that the court therefore lacked

argued try Article III and the Due Process Clause to the defend- might ant for offense to which the of the war illegality an provide a defense.

The termed a Court, granting District what it juris- motion in did not rule on the judgment, arrest In- in the argument dictional raised defense motion. stead, the court ruled what termed defendant’s “older contention” that the indictment did not charge offense based defendant’s “never-abandoned” Es- Free tablishment, Exercise, Due Process Clause objections arguments relating conscientious Vietnam war.

The court first case, stated facts in effect making findings essential to its decision. The opinion apparently referring pretrial District Court was to Sisson's “right “offer evidence” with reference to Sisson's of conscience.” [of] 273; supra, Supp., appear See 294 F. at 519. It does not right based on contention Sisson’s of conscience was raised at trial, supra, judgment, or made in the motion to arrest see n. 5. Possibly recognition this, noted District Court its opinion practice” would been better have Sisson’s “[i]t attorney “a to have made more detailed motion reference” his arguments. in arrest to his “earlier” The court stated that “[n]o doubt, seasonably defendant will make his motion in arrest even April days clearer.” On 3—two after the District Court’s decision— attorney Sisson’s moved to amend his motion in arrest to make the requested already grounds opinion. conform with those stated in the granted pro The District Court this motion to nunc tunc amend April opinion. as of date 1—the of its

Because conclude we the District Court’s decision was not arresting judgment, infra, in fact one see we have no occasion to incorrectly decide whether the District Court characterized these having defendant, so, issues as been raised if whether 34, requiring amendment to Fed. Rule Crim. Proc. granted a motion in arrest of “on motion of a de- fendant,” precludes granting a district court from such a motion on an issue not raised the defendant’s motion. the stand convinced demeanor how Sisson’s

describes The court stated sincerity. of his court moral and ethical. . . values is ultimate table of “Sisson’s and com- durable, pervasive, real, as quite reflects [and] religion.” formal as a priorities marshalling mendable a followed was that: for what finding The critical discipline church, of a derives from the another “What discipline of conscience. from the derives Sisson by ob- proving burden of bore the “. . . Sisson He that he was sincere. jective evidence conscience profoundly governed his genuinely ortho- martyr have been a obedient as would Supp., dox 297 F. 905. religion.” court held on these first Building findings, “prohibit the Free Exercise and Due Process Clauses application require of the 1967 draft act Sisson him to render combat service Vietnam” because as “sincerely man,” conscientious Sisson’s interest country’s “the outweighed the Vietnam conflict killing employed.” him to be so need for District present (j) ruled that of the § Court also Selective Service (1964 App. (j) ed., Supp. IV), §456 C. Act, 50 U. S. the Establishment Clause because it “unconsti- offends tutionally against atheists, agnostics, discriminated they men, who, not, like whether Sisson, religious objection by profound are motivated their to the draft moral beliefs which constitute the central convictions beings.” Supp., their 297 F. at 911.

II The Government bases its claim that this Court has jurisdiction to review the District Court’s decision ex- clusively on “arresting judgment” provision Appeals Criminal Act, § U. S. C. 37317 The relevant statutory provides: language may appeal by

“An be taken and on behalf of the United States from the district courts direct Supreme crim- Court the United States all in the inal cases instances: following “From arresting judgment a decision a con- insufficiency for infor- viction of the indictment or mation, where such in- upon decision based validity upon or construction of the statute which or indictment information is founded/’ Thus, requirements three must be met for this Court jurisdiction provision. have First, decision the District Court must be one “arresting a judgment Second, of conviction.” the arrest of judg- 7 text, 20, For the see n. infra.

It should be noted that opinion,, the conclusion of his Judge granting District stated that he was the motion arrest 34, because the words of Rule the indictment of Sisson ‘does “[i]n ” charge eonclusory an offense.’ He then stated terms that “ ‘arresting judgment his decision was one of conviction for insuffi- ciency upon of the indictment . . is based . the invalid- [which] ” ity upon .. . of the statute which the indictment ... founded’ purposes 3731, for of 18 U. C. and that S. the Government could § appeal therefore take direct to this Court. by The label attached opinion the District Court its own does

not, course, jurisdictional issue, decide for us the however. “We guided question must determining be appealability by trial court’s gave action not the name the court [its decision] legal actually was,” but what in Waters, effect it United States v. 127, 128, App. 341, 84 U. 340, S. D. C. 175 F. appeal 2d dismissed motion, Government’s (1948); 335 U. S. United States v. Zisblatt, 740, (C. Cir.), 172 F. 2d 2dA. dismissed on motion, (1949); Government’s 336 U. S. 934 see United States v. Hark, 531, (1944); 320 U. S. Blue, United States v. 384 U. S. (1966). “insufficiency of the indictment ment must decision must be “based third, And information.” upon of the statute invalidity or construction upon or information is founded.”8 indictment which the on facts not decision rests Because the District Court’s inferred alleged in the indictment but instead trial, adduced at we conclude court from the evidence is met.9 requirement neither the first nor second A was the decision begin requirement: We with the first In of conviction”? “arresting one below Appeals Act, Congress in the Criminal using phrase procedural a new not, course, invent classification. did common-law back- Instead, Congress against acted a statutory phrase a well-defined and gave ground An meaning. judgment arrest of was tech- limited trial, the act of a describing judge refusing nical term on of judgment appear- the verdict because an error enter judgment on of the record that rendered the ing the face 8Although three conditions must be met all for Government directly Court, long require appeal a to this case as the first appeal Appeals ment met the Government can to a of is Court separate provision allowing appeal of §3731 “[f]rom arresting judgment except decision conviction where a direct provided appeal Supreme Court of the United States is 9 requirement arguable the third It is not met since the upon invalidity decision was not “based District Court’s (1964 App. (a) ed., Supp. IV)— 50 U. S. C. construction” of §462 statutory “upon provision which the indictment ... is founded.” construction, however, upon As a matter of sound “statute which indictment should be read to ... founded” include the entire statute, provisions. simply penalty and not See United States Socony Co., (C. Cir.), Mobil Oil F. 2d 420 v. 252 A. 1st per stipulation, (1958); dismissed 356 U. S. 925 cf. United States Mersky, (1960); Friedenthal, v. 361 431 U. S. see also Government Appeals Cases, 12 71, (1959). Federal Criminal Stan. L. Rev. 75

281 *393; Commentaries 3 H. Blackstone, invalid. 3 W. on the Laws of Stephen, England New Commentaries 2 Criminal Pro- Bishop, Am. J. New (1st 1845); 628 ed. (2d 1913). § cedure ed. purpose requirement

For the this case critical on the judgment only is that a can be arrested basis of error on the appearing record,” “face and not requirement offered at This can proof the basis trial.10 In Sutton early English be found in common-law cases. Bishop, 2283, 2287, Rep. 191, v. 4 Burr. Eng. (K. 1769), it was stated: Court ought B. “[T]he upon judgments upon arrest matters not appearing record; judge face of the but are to upon the record transported States,11 itself.” Once to the United explicitly essential limitation of arrests Klin United States v. In acknowledged this Court. 144, tock, (1820), 5 Wheat. the Court stated that only “judgment can be arrested apparent errors Dustin, And later in Bond v. record.” 112 U. S. 604 (1884), the Court said, judg motion arrest “[A] ment can be maintained for apparent a defect upon record, the face of the and the part evidence is no id., Carter v. Ben record for this purpose,” 608. See nett, United 15 How. States (1854); 356-357 v. Norris, (1930). S. 619 U. requirement

This venerable of the common law has under preserved been the Federal Rules of Criminal Pro- courts cedure, the have held uniformly grant- 10 early days simply In the “face record” included the “judgment See United States v. material found on roll.” the Zisblatt, 2d, today 172 F. at 742. a In criminal it case has thought indictment, plea, been include than “no more the Bradford, United States v. . and the verdict . . sentence.” (C. 197, denied, (1952). 194 2d 201 Cir.), F. A. 2d U. cert. 343 S. 979 11 recognized This Court first the existence of motions arrest Cantril, in United States v. judgment (1807). 4 Cranch 167 282 a 34,12 Rule a in arrest of

ing judgment motion the face of the rec beyond court must not look district Zisblatt, 172 g., United States v. 2d 740 ord. E. F. mo (C. 2d dismissed Government’s Cir.), A. Lias, 173 (1949); United States v. tion, 336 U. 934 S. United States v. Brad (C. 1949); 2d A. 4th F. 685 Cir. (C. ford, 1952). 2 Wright, 2d See C. 194 F. 2d 197 A. Cir. (1969); Orfield, and Procedure 571 5 L. § Federal Practice Federal 34:7 § Criminal Procedure Under Rules Therefore, (1967). statutory interpret whether we phrase judgment” speaking “decision a as “to arresting it had as it then was ... as come down law, [in 1907] no interpret or do more than past,”13 from the simply the standards of Rule Crim. Proc. imposing Fed. can 34,14a decision based on evidence adduced at trial arresting not be one judgment.15 provides: Crim. Proc. 34 Fed. Rule judgment “The shall arrest if court motion of defendant charge if or information does an offense or the indictment jurisdiction charged. court offense The motion was without days shall be made within after or arrest verdict finding contendere, guilty, plea guilty after or nolo or may during within further time as the court fix the 7-dav such period.” Zisblatt, supra, United States v. at 742. Lias, supra, 14 UnitedStates v. at 687. None of cases relied on the Government even hints that presented at the can for motion

evidence trial be the basis Green, judgment. In v. arrest of United States 350 U. S. 415 (1956), majority disagreement no there was between the dis impossible if senters on the rule that direct review is the decision upon arising below based from facts the trial. Instead the disagreed majority simply and dissent as to whether the District Compare Court’s decision had relied on evidence at the trial. majority opinion, S., dissent, 350 U. 418 and at with the S., Bramblett, (1955), 421. In States v. U. United 348 U. S. 503 Government, specified also cited the indictment appellee against Disbursing had claim made fraudulent Office clearly beyond The court below went the “face of the earlier, record” in its decision. As noted reaching opinion explicitly upon relies the evidence adduced at the trial, including evidence, demeanor for its findings that Sisson was “sincere” and he gen- was “as uinely profoundly and governed by his conscience” as a conscientious religious objector. inescapable

To avoid the conclusion that the District opinion Court's was not arrest of judgment, Gov arguments. ernment makes two First, the Government suggests findings that these factual of the Court, District based on the evidence presented trial, were not es sential to its constitutional rulings, but instead part of “the circumstantial framework” of the opinion (Jurisdictional 9; below. Statement see 8.) Brief This Representatives of the of House of 18 violation U. S. C. § any which forbids the willful falsification of “in material statement any jurisdiction any department matter within the agency of or the United States.” District Court arrested on the ground Disbursing “department that the House a Office was not or agency” purposes statute, appeal this Court reversed. Neither the District Court nor this Court relied in way upon determining evidence submitted at the trial in scope statutory phrase “department agency” found Finally, U. S. C. 1001. the Government to United refers States § Waters, v. App. (1948). 84 U. D. S. C. 175 F. 2d 340 In that charge case the District held Court an indictment did not an offense alleged only appellee because it was carrying gun, carrying gun However, that he was without license. opinion grant District Court acquittal. called its a motion of appealed The United States of Appeals the Court which held that arrest, decision was a motion in stating that “question appealability” turned not on “the name the [dis- gave legal court but what trict] [the decision] effect it was,” actually Appeals The Court of then certified the case Court, since it felt the motion arrest involved an “inter- pretation” underlying statute, but the was dismissed States, (1948). motion the United 335 U. S. 869

284 however, for factual the analysis, withstand

cannot under the District absolutely essential, were findings the case. disposition to its of theory, legal own Court’s sincerely and funda was a that Sisson finding Without in the Vietnam con participation mentally opposed to not have ruled that Court could flict, the District Sisson’s Free Exercise Clauses the Due Process and the Gov outweighed in Vietnam serving interest not him for such service.16 need to draft ernment’s the that even Second, argues though the Government on evidence adduced findings District Court made “undisputed.” Adopting relied on were trial, the facts by below, used the court the Government language the upon agreed “in the case arises an claims that substance at 904. The Supp., 297 Gov- statement of facts.” F. of argue then on to that decisions goes ernment of facts “recognized stipulation this Court have that a by in a criminal can be parties case” relied affecting jurisdiction Court without District Halseth, United States an 342 appeal, citing for v. Fruehauf, United States v. (1952), and 365 U. U. S. S. appear The factual determinations would also essential for the ground alternative of based on Estab District Court’s decision holding necessarily upon finding lishment Clause. That rests Sisson, though nonreligious, genuinely profoundly "was as governed martyr his have a conscience would been obedient religion.” finding, an orthodox Without this Sisson would have standing (j) no the underinclusiveness of to assert the Act § prosecution. aas defense to his Whether factual determinations questions purposes deciding standing, made particu larly trial, requirements if made before would offend the that mo tions in arrest must be based on errors on face of the record inappropriate is an issue in this for decision case. Because of our holding determination that the District free Court’s exercise was acquittal, in effect an there is no need to decide whether the alterna ruling appealable tive Establishment Clause would be if it stood alone. (1961). then concludes that Government to hold there exalting

would be form over substance no case not con- appeal where Government has appeal lie from facts, yet tested the allow an upon parties. stipulation motion to dismiss resting Court Preliminarily, it should noted that has never held from a which lies decision sufficiency alone, depends, upon indictment In Halseth stipulation parties. but also on a parties stipulation did enter into for purposes a a stipulation motion to dismiss. But the facts in the were legal irrelevant issue of whether the federal anti- lottery yet not game statute reached existence. Therefore, neither the District Court dismissing indictment, affirming decision, nor this Court its had rely stipulation. purposes on the And, for deciding jurisdiction appeal existed, whether for an under § 3731 obviously not the Court did have to decide—and it did reliance a stipulation discuss—whether on would any make difference. Insofar as United States v. Frue hauf, supra, by the other cited the Government, case point away relevant at all seems from the Gov Fruehauj ernment’s In this contention. Court refused to consider the merits of an 3731 from § dismissing a District Court decision indictment “ ‘judicial the basis of a admission’ culled from pre by trial memorandum” of the Government the District Rather than Judge. Government penalizing however, dismissing appeal, simply the Court exer cised its discretion under 28 U. C. 2106 setting § S. below, the ruling remanding aside for case a new existing trial indictment.

Not do the cited by cases the Government fail contention, establish its but authority points other strongly opposite In direction. United States v. Norris, (1930), U. S. this Court “stip- said that a import

ulation was ineffective to an issue as to the suffi- ciency indictment, upon or an issue of fact or “the rule question guilt innocence,” because of can be added to an indictment without the con- nothing id., of the grand jury,” currence at 622. While it is true complicated by that Norris is the fact that the defendant guilty plea, had entered a the Court said that even “[i]f stipulation plea had filed before [the been] [had effect, stipulation such a given would oust been] id., Norris, jurisdiction of the court,” 622-623. to- policy, expressed by with the often gether Court, Appeals strictly the Criminal Act should be construed g., the Government’s against right appeal, see, e. Co., United States v. Borden (1939), 308 U. S. very it at least parties makes doubtful whether on the basis of a should, stipulation, able to secure provisions review under the motion-in-arrest 3731. § issue, do not decide that however, We there was approaching stipulation even here. nothing Before final ruling below, parties court’s did not way, formally agree on the informally, findings factual It opinion. made its is relevant to recall that before attorney the government specifically trial refused to stipulate sincerely whether Sisson believed the war to be if and, so, whether illegal, such a belief was reasonable. Moreover, given government attorney cross- Sisson, pointed examined and later out the inconsistency acceptance between Sisson’s of a II-S student deferment claim disapproved and his that he of deferments hardly unfair, seems the accepted Government sincerity insofar as it Sisson’s was an issue in the Therefore, far from case. like a case being with a formal stipulation between the parties, the most that can be said is that the District Court’s decision the Gov- after accept opinion’s ernment chose findings fact. Even reliance on a assuming stipulation formal per- were direct missible, it would still be intolerable allow its review whenever District Court decision labels merely accepts motion in and the arrest, Government trial —for findings the lower court’s factual made after a parties simply court this would mean the and lower jurisdiction upon could foist this Court.

B The the decision statutory requirement, second insufficiency “for of the indict- arresting judgment met in one meht,” Nelson, is also not this case. Senator sponsors Appeals of the made it Act, of the Criminal plain during the debates that this second element was important He said: limitation.

“The arrest of judgment ... which an lies, is motion all the general covering grounds may judgment simply which a be arrested. It is for insufficiency arrest of because is, the indict- the indictment —that failure of charge ment to a criminal 41 Cong. Rec. offense.” (Emphasis supplied.) 2756.

See also Cong. Rec. 9033. the District Although opinion Court’s recites as a conclusion that indictment case did “not an offense” charge purposes 34, surely of Rule al- indictment necessary elements of leged an offense.17 deci- (a) (1964 ed., Compare App. Supp. IV) 50 U. C. with S. §462 allegations of the indictment: April 17, 1968, Boston, “That on in the about District of Massachusetts, SISSON, Lincoln, JR., of JOHN HEFFRON unlawfully, knowingly wilfully District Massachusetts did and duty required neglect perform fail refuse to of him under Military the execution Selective Service Act of 1967 rules, regulations duly pursuant thereto, and the and directions made particularly Regulations 1632.14, Code Federal he did comply neglect fail and and refuse to with an order of his local the court defenses which affirmative rests on below sion his beliefs. It claim because of could Sisson thought in order to indictment, that an thought never been has United defenses, anticipate affirmative sufficient, need (D. C. D. Y. Fargas, Supp. 452, 455 S. N. v. 267 F. States validity local questions as 1967) (“Any objector exemption conscientious grant refusal board’s no necessity of defense . . . matters [t]here are [that] Moreover, negate indictment . . even for the arguendo, the correctness the District assuming, Court’s theory objectors that sincere nonreligious constitutional particular privilege wars have a constitutional conviction, bars the facts essential claim Sisson’s appear do from privilege this recitals indictment. As the District Court itself said before trial, believed is question “[W]hat [Sisson] evidence question appears and not a which on the face of the (App. 52.) indictment.” In indictment short, this can- for, not be taken insufficient on the one hand, the necessary recites of an elements offense, and hand, other it does not facts allege that themselves dem- availability onstrate the of a privilege. constitutional

C The same reason underlying our conclusion that was not a decision arresting judgment i.e., that the dis- — position is bottomed on factual conclusions not found in the indictment but instead made on the basis evi- dence adduced at the trial —convinces us that the deci- sion was fact acquittal rendered by the trial court the jury’s after verdict of guilty.

draft board to submit to induction into the armed forces of the States; United violation of Title Appendix, United States Code, Section 462.” compare this helpful

For it is purposes analysis as follows: case to in was instructed jury one which if and sincere, to be you “If find defendant Sisson profoundly and he was as you genuinely find that to an martyr as a obedient by conscience governed him acquit must because religion, you orthodox him serve Viet- having interest government’s by obeying his interest outweighed nam is if hand, the other of his conscience. On dictates you you if find that you find, do not so must convict petitioner wilfully did refuse induction.” no doubt instructed, If a there can be jury had been so appealed could under acquittal that its verdict theory no matter how erroneous the constitutional § underlying the instructions. Knox said of As Senator Appeals to become the Criminal Act: the bill that was Gov- proposed give “Mark this: It is not any when any appeal ernment circumstances acquitted defendant error whatever for court. committed mis- takes the risks of all the

“The Government judge the trial takes of its officers prosecuting trial, it an only proposed give and it is by the defend- appeal upon questions of law raised to defeat the trial and if it defeats the trial. ant “The defendant the benefit of all errors gets favor, challenge which are in his and can the trial in the trial which are him.” against all errors Rec. 2752. Cong.

Quite apart statute, is, course, from the well settled “not be on error or other acquittal reviewed, that an can jeopardy, twice in wise, putting without defendant] [the the Constitution. ... thereby violating [I]n country acquittal, although not followed a verdict prosecution any judgment, subsequent bar to a Ball, States v. offence,” the same United 163 U. S. 671 (1896).18

There are three differences between the hypothetical just the case at in this suggested First, case and hand. judge jury case it was the made the fac- —not —who tual This sup- determinations. difference alone does not port a legal distinction, however, for like judges, juries, can acquit defendants, see Fed. Rule Crim. Proc. 29. Second, the judge this case made his decision after jury had brought a verdict of guilty. (b) Rules 29 and (c) of the Federal Rules of Procedure, Criminal how- ever, expressly allow a federal judge acquit a crim- jury inal after defendant “returns a guilty.” verdict of And third, in this case District Judge labeled his post-verdict opinion an arrest of judgment, not an acquittal. This characterization alone, however, neither jurisdiction confers Court, see n. 7, supra, nor makes the opinion any dependent less upon evidence adduced at the In short, trial. we see no distinction be- tween what the court below did, post-verdict and a directed acquittal.19 18 principle This would jurisdictional dictate that after this dis

missal, may Sisson not be retried. 19 not, Our conclusion suggested does dissent, post, at 327 (dissenting opinion of Mr. rest on the White),, Justice fact “might District Court jury have” sent the case to the on the text, instruction referred to in the but instead on what it did do— e., i. legal render a determination on the basis of facts adduced at relating trial general to the case, see, issue of infra, 301. at dissenting Neither opinion explains “large what and critical” dif ference, post, 329, exists expansive between its notion of what constitutes a arresting judgment decision post-verdict acquittal judge entered jury after the has returned guilty a verdict of pursuant to Fed. Rule Crim. Proc. 29. think

We untenable the view of Mr. Justice White that under principles opinion today of this the “Court should not have had jurisdiction in United States Covington,” v. 395 (1969), 57 U. S.

291 h-i i—I rH opinions The Justice dissenting both Chief niggardly- and Mr. Justice White we are too suggest interpretation Appeals Act, our Criminal each con- broadly contends the Act be more should policy strued to give underlying effect to said to favor This has stated frequently review. Court to the “exceptional appeal given Gov- right Appeals ernment strictly the Criminal Act is limited Co., Borden United States v. instances specified,” appeals 308 “are 188, (1939), U. S. 192 and that such Carroll something unusual, exceptional, favored,” States, v. United see United 394, (1957); S. U. Keitel, States v. United States 370, (1908); U. S. Dickinson, United Will v. v. 213 U. S. (1909); cf. States, 389 90, (1967). approach suggested U. S. by our Brothers seems inconsistent with these notions. the Moreover, background history the and of legislative Appeals compromise Criminal Act demonstrate of Act of origins justify principle strict construction Court has said always placed this should be provisions. Appeals Act, on its Because Criminal ground pretrial in on the dismissal that case “would acquittal might judge given to an amount because have the case jury acquit to the under instructions that if it should found necessary privilege g., the facts sustain the defendant’s —e. registered he was not one of the dealers was marihuana whose conduct legal law,” post, original). (emphasis under state at 327 in weAs infra, Covington note, n. do in what the District Court did evidentiary hearing. any trial without dismiss an indictment before merits, Moreover, disposing Government’s contentions pretrial this Court held there was no need in that case for a evidentiary (much hearing on the defendant’s motion to dismiss less any jury) (1) a need to submit issue to because “there factual a any possibility dispute regard to the no factual with hazard incrimination”; (2) alleged “the Government never [had] controversy” concerning appellee’s existence of a nonwaiver factual self-incrimination, S., privilege against his 395 U. at 61. de- (1964 Supp. IV),20 has ed., §3731 C. now U. S. original Crim- in substance from unchanged scended 2, 1907, on March which was enacted Appeals Act, inal inquiry for must the crucial focus 1246,21 34 Stat. history of the Act.22 be the legislative provides, pertinent part: The statute may and on of the United States appeal “An be taken behalf Supreme Court of the United from the district courts direct to the following instances: States in all criminal cases any setting aside, dismissing judgment or “From a decision or information, thereof, such decision indictment or or count where invalidity judgment upon or or based construction upon which the or information is founded. statute indictment arresting of conviction for insuffi- “From a decision ciency information, or where such decision is based the indictment invalidity upon upon the or construction of the statute which the indictment or information is founded. judgment sustaining bar,

“From the decision or a motion in when put jeopardy.” not been the defendant has goes provide (1) appeals The statute on to Government appeals (a) setting courts of for all other decisions aside or dis- (b) missing indictments, arresting judgments; (e) granting or motion; (2) pretrial suppression bail; (3) release on transfer of cases appeals from this Court court of to a or vice versa when an erroneously wrong has been taken to the court. provided pertinent part:

21 34Stat. 1246 may “. . . That writ of error taken on behalf of the United States from the district circuit courts direct to the Supreme cases, Court the United States in all criminal in the following instances, to wit: judgment quashing, setting

“From a decision or aside, or sustain- ing any to, indictment, any a demurrer thereof, or count where judgment upon such decision or invalidity, is based or construc- tion of upon the statute which the indictment is founded. arresting

“From a decision of conviction for insuffi- ciency indictment, of the where such upon decision is based invalidity upon or construction of the statute which the indictment is founded. judgment sustaining special

“From the decision or plea bar, in put when jeopardy.” the defendant has not been 22 present day, Congress Between 1907 and the has amended the Act several include a 1948 times. These brought amendment that

293 A of years before enactment Beginning 1892—15 Attorneys General Appeals Act—the the Criminal regularly passage recommended the United States crim the Government legislation allowing purpose perhaps Their was best primary inal cases.23 report: Miller his 1892 expressed by Attorney General in the of a power “As law now stands ... by indictment, to defeat single judge, quashing district prosecution by the Governm criminal instituted until Pres progress, ent.”24 There no however, was ident Theodore decision Roosevelt, outraged vocabulary conformity procedural into the statute formal Procedure, with Federal Rules of Criminal 62 844. Al- Stat. though “special plea bar,” in bar” thus became “motion “deci- quashing sustaining to, any sion .. . ... or a demurrer indictment” dismissing any became indictment,” “decision . . . the Reviser’s plainly change 294 prosecution of the

Judge Humphrey preventing “major reform into a proposed made this Trust,25 Beef of leg demanded the enactment political issue,”26 and message Congress.27 to islation his 1906 annual “was written, as commentator has House, The one passed, command.”28 It presidential obedient very bill the Govern- debate,29 giving without a broad decided ad- right appeal legal ment the same issues versely to it as had earlier been accorded criminal accept any would not such defendant.30 Senate common-law rule sweeping change of traditional giving appeal no all. The Government at substitute Judiciary bill reported Committee out31 Senate substantially, narrowed the House bill limited the right appeal Government's deci- writs error from (1) sions an quashing indictment or de- sustaining murrer (2) indictment; arresting insufficiency indictment; conviction because of the (3) sustaining special pleas in bar when the defend- ant had put jeopardy. narrowed, not been Even as

25 Co., (D. v. United States Armour & 142 F. 808 C. D. Ill. N. 1906). 26 Landis, supra, supra, 23, 117; Kurland, n. See Frankfurter & at 23, at 449. n. 27 Cong. 41 22. Rec. 28Kurland, supra, 23, n. at 450. 29 Cong. Rec. 5408. Cong. It appears The text of the bill Rec. 5408. House gave right of error United States the same of review writ defendant, provided then further accorded criminal but found, any if on error the defendant should were advantage retain the verdict in his favor. neither With division, April 17, passed debate nor a bill House on 1906. Ibid. Cong., (1906). Rep. See S. No. 59th 1st Sess. bill on opposition floor,32 met and the session action.33 closed without Senate bill again reported The next was out session, after Judiciary it was Committee,34 the Senate debated days strong opposition.35 three on floor and met again deep legislation jeop that the Reflecting concern appealed ardize of defendants whose cases interests were by adopted requiring were Government, amendments appeal days prose the Government to within 30 to its with diligence;36 allowing cute cases defendants were appealed whose eases to be released their own recognizance presiding the discretion of the judge.37 lest there particularly Various Senators were concerned any possibility be a defendant had already who been through subjected one trial another trial after a response In successful Government.38 concern, adopted requiring amendment was then verdict favor the defendant not be set aside appeal39 theory no legal matter how erroneous the it upon which be based.40 For it might purposes, these plain made no that made difference whether the jury’s verdict be the result decision or that of the explore we in more judge.41 Moreover, later, detail 32 Cong. 40 9033. See Rec. 33 Id., at 9122.

34 Cong., Cong. 1865; Rep. 41 Rec. S. No. 59th 2d Sess. (1907). 35 Cong. 2190-2197; 2744r-2763; 41 Rec. 2818-2825. 36 Id., at 2194. 37 Id., at 2195-2197. id., at See 2749-2762. id., 2819. See id., See at 2752. asked whether the substance of his amendment was that When no appeal

there was to be and retrial after had the defendant been arresting from decisions apart debates suggest appeals case to be no taken there were judgment, impaneling had attached jeopardy which scope further the the Act to limit jury.42 Finally, public right the Government’s importance, cases appeal (under special plea provision) in bar all but ground was confined to in which the of the District cases “invalidity Court’s decision was the or construction of upon the statute which the indictment is founded.”43 all these amendments the passed With Senate the bill February 13, 1907,44 division on but the House, without after referring Judiciary the Senate’s version its Com- disagreed with mittee,45 proposed the Senate bill and a committee, apart conference.46 The conference from divesting appeals jurisdiction courts to hear appeals, adopted government the Senate version of the bill with merely changes.47 formal Both the Sen- ate approved and the House the bill reported by out 48 committee and with President’s signature Crim- inal Appeals Act became law.

B perspective, With this we now arguments examine the opposition made in to our argued conclusion. It is “acquitted by jury,” sponsor amendment, the verdict of a of the Rayner, “I Senator stated: have in the no such amendment words by 'acquitted nothing I jury.’ jury. as have to do with the may acquitted by magistrate by He a .... I care do not what Id,., acquitted he tribunal ...” at 2749. 42 infra, See at 302-307. 43 2822, Cong. Rec., See at 2823. 44 Id., at 2834.

45 Id., at 3044-3047.

46 Id., at 3647. Rep. 8113, Cong., H. See R. No. 59th 2d Sess.

48 Cong. Rec. 4128. dissent “contemplates judg- § that an arrest of ment appropriate in other than closed category a cases by legal defined and concludes “evi- history,” dence adduced trial can be considered a district court the basis of judgment as for a motion arrest solely purpose when that evidence is used for the of test- ing constitutionality statute charging post, at 314 The applied,” (dissenting opinion Chief Justice). pro- propose

The dissenters effect to create a new cedure —label it a order decision arresting —in jurisdiction to conclude that this Court has to hear statutory “deci- phrase Government. into arresting judgment” empty sion is not vessel which this think pour Court is free to vintage we present-day better suits tastes. As we have Con- shown, gress jurisdiction Appeals defined our in the Criminal procedures Act in terms of As a matter existing 1907. interpretation, no right give this Court has statutory com- language meaning inconsistent with its mon-law alien to limitations antecedents, today motions arrest of govern Rule 34.49 reinterpretations

Radical “deci- statutory phrase necessary in sion said to be arresting judgment” a are order to effectuate a broad found to be under- policy, review lying Appeals Act, the Criminal that this Court important legal issues. The axiom that courts should give statutory endeavor to that language meaning the policies underlying nurtures legislation one appears “outgrown” the It dissenters have not the statutory arresting pur judgment” limitations of a “decision for 3731, poses of but also the limitations of Rule 34. § covered plainly us circumstances not guides when underlying by of a statute are subsumed the terms Care must was policies Congress to which committed. Con- up to to which however, respect limits taken, especially particular policy, prepared to enact a gress was as a com- of a statute are drawn when the boundaries pressures from promise resulting countervailing Brothers, seeking to policies. disagreeing other Our review, ignore energize congressional commitment juris- compromise limited our subtlety thereby necessary enact diction, garnering the votes Appeals the Criminal Act.50

In this regard, legislative history strong reveals of congressional current of a plight solicitude criminal exposed expense defendant additional anxiety by government appeal pos- and the incumbent sibility multiple appeals by trials. Criminal the Gov- policies ernment “always threaten to offend the behind States, Will v. United double-jeopardy prohibition,” supra, 96, even where circumstances the Constitu- tion itself does not retrial. bar Out a collision be- tween this policy concern, and the competing policy favoring review, Congress fully enacted a bill that satis- fied neither opponents.51 the Government nor the bill’s For Criminal Appeals Act, thus born of compro- mise, manifested a congressional policy provide review

50Professor compromise Kurland characterized the statute as “a among divergent several forces. The division Senate primarily between those who wanted limited review and those who wanted none. The division between House and Senate was complete between those who wanted review and those who wanted Kurland, supra, limited review.” n. at 454. 51See, g., Rep. Atty. infra, e. Gen. 4. See 306. policy in instances but no less a to congressional certain the restrict enumerated circumstances. provided by

Were we to throw the ballast overboard language legislative history, the statute’s we would cast blind to the risks collision with adrift, ourselves policies buoys marking safely other that are navigable jurisdiction. zone of our we have shown, As what the Court did cannot be dis- District case post-verdict tinguished acquittal from a entered on present did not ground that Government evidence A prove primary sufficient to was insincere. Sisson emerged concern the bill that into law that no acquittal be taken from an no Government legal matter how erroneous the theory underlying the beyond the Moreover, going present case, decision. theory disagreement judge of those would allow trial disputes resolution of reserve himself the concern- ing underlying particular a claim circum- facts speech protest stances privileged march were Amendment, practice plainly First inconsistent with a jury rights. criminal defendant’s trial

C Quite apart from arresting judgment provision, it we have argued jurisdiction is also under the “mo- provision tion bar” Act. Appeals Criminal appropriate We think it to address ourselves to this con- particularly light we tention, fact that asked parties brief that issue,52 though even our holding acquittal below was an decision is sufficient to dispose of the case. (1969). See 396 S.U.

300 provision is very the motion-in-bar

The case law under general has not on a confused,53 and this Court settled in interpreting provision.54 be taken this approach 53 ordinarily law, special plea in bar was used to At common a acquit, convict, pardon— and three raise autrefois defenses—autrefois that, that language in some of our cases indicates and there is defenses, plea appropriate a in bar not “to apart from was these single in advance of trial matters defense out for determination Murdock, United States v. questions fact,” 284 on law either 141, (1931). the narrow 151 There are cases consistent with U. S. indicate, example, that that a defense common-law definition upon raised the statute limitations could based Kissel, United States bar,” 601, v. “special plea in 218 S.U. Barber, (1911). States v. (1910); 72, 219 United 78-79 610 U. S. jurisdiction hand, appears accepted On the other the Court granting pleas bar 3731, appeals special from based decisions § defense, explanation appar no on a statute of limitations with Goldman, States v. 229, See United inconsistency. S. ent 277 U. Rabinowich, United States (1928); v. 238 U. 78 236-237 see also S. Mersky, (1915). And, in United States v. (1960), U. 361 S. 431 bar, decision on there was no of the Court what was motion concurring opinion and the of Mr. Justice Brennan and the dis- senting opinion disagreement indicated Mr. Justice Stewart on id., S., Compare 361 441-443 this issue. U. at with at 455-458. To Murdock, supra, in United States v. arguably uncertainty, add to the Blue, in United States v. certainly 251, and 384 S. 253-254 U. Covington, (1966), United States (1969), v. 395 U. S. 59 n. jurisdiction Court appeals took considered the merits of from court district dismissals based self-incrimination defenses ground on the that the decisions below had sustained motions Mur- purposes Appeals though bar for of the Criminal Act —even dock itself is not appropriately stated defense raised special plea S., in bar. 284 151. at U. Mersky, In United States v. (1960), U. there S. concerning approach no decision of the Court what should be taken. suggested Justice Brennan category include Mr. id., reprosecution barred if upheld, 441-443, decision that at while thought provision Mr. Justice Stewart should be confined to compass those fall decisions would within of the common bar,” id., “special plea law generally Kurland, 455-458. See supra, n. 23.

Even under the expansive most a motion view, however, in bar cannot be granted the basis of facts that necessarily would be tried with the in the general issue In case.55 this case, there can be no doubt District Court based findings presented its on evidence in the trial As we general issue. have shown earlier, court’s were on findings based Sisson’s testimony Moreover, and demeanor at the trial itself. a based on defense Sisson’s asserted constitutional privilege not to be required fight in a particular would, war think, necessarily part we of the issue” of “general a registrant’s suit over a refusal to submit to induction. As The Chief says his dissenting opinion, Justice “establishing appropriate classification actually element of the case,” post, 324, Government’s at once a defendant challenging raises a defense it. We think pre-induction defense to a suit based conscientious objections require that factual determinations is so general intertwined that with issue be tried must issue, Fargas, with the general United States v. 267 F. Supp. 462, (1967) (pretrial 455 motion dismiss under 12 (b) (1) Rule the basis of an denied because affidavit, validity “the objector] defense [conscientious Fargas which now raises .. will require . the consideration of factual questions which are embraced in the general issue”); Ramos, United States see v. 743, 413 F. 2d 744 1 1969) 1st (C. (evidentiary n. A. Cir. pre hearing motion to trial dismiss indictment appropriate means validity to consider of defense based on conscientious objection because “[questions validity regarding the 55 provision The dismissal 12, Fed. Rule Crim. Proc. which Mr. Justice Brennan Mersky having his concurrence saw as away “swept pleas,” S., the old 361 U. at itself limits “capable dismissal to those defenses of determination without general trial of issue,” Fed. (b)(1). Rule Crim. Proc. raised as have been should classification appellant’s Fargas approval).56 with citing trial,” at defense appeal reason no another view, still in our is, There provision. the motion-in-bar case lie this can confining Appeals Act the Criminal construe We Covington, su-pra, suggest, as v. States does United Nowhere jurisdiction motion- might be under the dissent, there argued parties where the in circumstances provision “tr[ied] of 3731 in-bar § motion, bar, judge were relevant facts to the post, (dissenting opinion of general issue,” separate from the reaches conclusion Brother Our White). Me. Justice White Covington context, confusing quotation from out of by taking a disposition opinion’s merits of the Government’s holding. jurisdictional Court’s with the Court, eviden- Covington, the trial without In District before hearing, tiary on the Marihuana dismissed an indictment bottomed (a) (1), ground “privilege Act, 26 on the Tax U. S. C. § necessarily complete de provide a against self-incrimination would id., appealed, prosecution,” at 58. Government fense to jurisdiction claiming the had under both the dismissal and Court jurisdiction provisions found motion-in-bar of 3731. The Court § only provision. The of the the alternative under either discussion issue, footnote, jurisdictional in a motion-in-bar found was as follows: ground “If the on the dismissal rested the Fifth Amendment privilege defense, 'sustaining be a would then decision was one (1931),” Murdock, motion in v. bar.’ See United States 284 U. S. 141 S., 395 U. at n. 59 2.

Having disposed jurisdictional issue, thus of the the Court proceeded and, to the appeal merits of the Government’s inter alia, plea privilege [against considered “whether such of self- may justify indictment, ever dismissal an and if incrimination] instance,” id., so whether this is an such at 60. In this context Court said: (b)(1) ‘Any

“Federal Rule of Criminal Procedure states that: objection defense or which capable of determination without the general may trial of the by issue be raised before trial motion.’ A ‘capable defense is thus if determination’ trial of the facts sur- rounding the commission alleged of the offense would be of no determining validity assistance in of the (b) (4) defense. Rule allows the its District Court in to postpone discretion determination trial, permits of the motion to and factual hearings prior to trial right appeal except Government’s motions — jury arrest of situations which a has not —to impaneled, though been even there are in which a cases constitutionally retried if might appeals defendant jeopardy were allowed after had attached. Because the court below rendered its decision here after the trial began, not, and because that decision as we have shown, an arrest of we there judgment, therefore conclude appeal can be no under provisions § the other 3731. necessary peculiar Id., if to resolve issues of fact to the motion.” at 60. quotation context,

Taken in full used MR. Justice White, post, 332, plainly power had reference a district court’s indictment, nothing Fed. Rule Crim. Proc. to dismiss an quite scope whatsoever to do with distinct issue of jurisdictional provisions of 3731. §

That the concerned Court was there with the merits of from suggesting is clear what follows. After that most circum- brought stances a motion dismiss indictment under 26 C. U. S. require any inquiry, would not factual the Court stated that § privilege once a defendant asserted his trial court should dismiss evidentiary hearing indictment without an “unless the Government presumption can rebut the privilege] nonwaiver of the show- [of ing inquiries.” Id., a need for further factual applying at 61. In principle it, to the merits case before the Court affirmed the (1) District possibility Court’s action below because: “there no [was] dispute regard factual incrimination”; with hazard (2) alleged “the Government has never the existence of a factual controversy” concerning the “appellee issue of whether waived [had] privilege.” his Ibid. Covington say

The Court did not that a defense based on the privilege against self-incrimination where there were in dispute facts could, cases, in all be decided without consideration of general the And, importantly issue. present more for purposes, nowhere does Covington opinion even hint that a requiring dismissal pre- a evidentiary hearing, trial or a properly dismissal motion deferred to general trial appealable issue be would under the motion- provision in-bar Appeals the Criminal Act. The Court in Cov- ington jurisdictional had no such it, issues before opinion and the does not discuss such issues. Eirst, reasons. for several this conclusion

We reach clear, we far from history legislative although the except expectation think congressional could have shown we in arrest —which motions rulings at trial —the adduced on evidence be based never trial before the related would occur the bill to which provision motion-in-bar of the language began.57 Spooner exchange, In this Senator Cong. Rec. 9033. See only questions which applies this “I understand [bill] said: agreed jury.” Nelson Senator impaneling before arise saying limited, obviously thinking he was so the bill was party only applied bill thing, said the “[w]here the same being reminded of jeopardy.” After put has not been acknowledged that arrest-of-judgment provision, Senator Nelson scope obviously trying minimize the exception, but this was an only motions in arrest exception pointed he out that granted appealed were those “for insuffi judgment that could ground.” Ibid. ciency indictment; not for other (“I say (Sen. Nelson) Cong. wish to further See 41 Rec. 2191 jury impaneled the defendant has been a has been and where where (Sen. Patterson) (“[A] lie”), id., at appeal does not tried judgment three in arrest of ... is the one of the cases motion been a the other two in which there can have trial .... [I]n jeopardy . . must ex necessitati be before cases . the motions made Patterson) attaches”); id., (Sen. (“These are proceedings at 2752 prevent trial, except all defendant’s acts verdict to before judgment, motion in arrest of which is defendant's after verdict act against verdict”) (emphasis him to defeat a supplied). explaining inconsistency,

Without his Senator ex- Patterson later pressed proposed the view that under the bill the Government would have been able to the decision in the Chicago famed Beef jury’s Trust Case because the “special plea verdict was based on the case, guilt innocence, in bar filed” in that not on the defendants’ id., Underlying at 2753. disputed conclusion—later Senator Nelson, id., see at 2757-—was expectation Patterson’s that “in the special case plea against of a in bar that went the Government the jeopardy id., defendant had been in case," the merits (emphasis supplied). at 2753 Unlike the defendants the Beef

305 granted itself “when the defend- appeals limits those in read lim- put jeopardy.” ant has not been We e., says exactly no appeal itation mean what it —i. in from motion to be granted jeopardy bar is after history attaches. shows much Although legislative disagreement concerning the meaning and confusion prohibition constitutional de- against subjecting a jeopardy58 fendant to double there dispute was little over put then-settled notion that a defendant was into jeopardy jury once the was sworn.59 To read this limi- tation as no more than restatement of the constitutional White, prohibition, suggested as renders Mr. Justice it completely superfluous. No Senator thought Con- gress power had the under the for provide Constitution appeal an circumstances which that would violate the Constitution.60

Our conclusion draws from strength fact that Government placed itself has exactly this same interpre- Trust Case—who Patterson understood not to have been tried on the general guilt plainly put issue of their or Sisson has been innocence — jeopardy “in on the merits of the case.” Our Brother White admits much, by suggesting Therefore, he could not be retried. even reading statute, Patterson’s broader appeal an would lie in this case. 58See, g., e. Cong. Rec. 2745-2763. 59See, g., 2192; id., Cong. e. 9033; Cong. Rec. Rec. 2751. (Sen. 41 Cong. Knox) See (“[I]f thought Rec. 2751 I there line, single sentence, awas or a aor clause contained this bill by any which court place would be construed to a man twice jeopardy, I out, vote cut would it not because there would be necessity out, cutting it as it would be invalid under the Consti States, tution of the United I upon but would vote to cut out ground that it would not be intelligent an artistic and bill with such borders.”) provision within its provision granting from dismissing a decision setting aside an indictment does not phrase contain a similar limiting appeals to yet cases where the put defendant has not been jeopardy, agree but we with the conclusion reached the Gov- 57, supra. ernment applies. same limitation See n. Justice, the of Department The the Act. tation enacted, bill was original the for benefit whose agency after shortly statute placed this construction first abided consistently and has enacted, the bill As passed. since years more that have in the than 60 in brief: stated his the Solicitor General taken consistently Department “The of Justice has in plea gov- bar section limits the view that the of such granting of right appeal ernment’s to after has Soon pleas jury before a been sworn. of Report original Act, passage the omission Attorney urged General post- appeal to from governmental right Act revising the so jeopardy rulings be remedied Act for as to counsel the defendant raise require questions prior jeop- to the time when argue law ardy Brief 17. attached,” Zisblatt, Later, describing opinion supra, after appeal which the Second Circuit certified Court put in phrase jeop- to determine whether the “not been limitation, incorporated ardy” merely the constitutional or instead should be taken the Government’s literally, brief states: General,

“The then Solicitor the view being from appeals barred the granting statute jeopardy motions bar after had attached, moved appeal, appeal to dismiss the and the was dismissed (336 934). Department U. S. Justice has thereafter adhered to that and the position, gov- has sought ernment never in these circumstances.” interpretation This our view great deserves weight. 61Brief 19. It should be noted that at the Government’s re quest proposed amendment 3731 has been introduced in § In light of (1) compromise origins of the statute, (2) the concern with which some Senators viewed the of retrial defendant whose trial after terminated the jury was impaneled, interpretation (3) placed on the shortly Act after has passage62 its been consistently followed for years by more than 60 we think Government, the correct course is to construe the statute to provide a admin- clear, easily istered except test: judgment, decisions arresting there can government be no appeals from decisions rendered after the trial begins.

IV Clarity is be any statute, desired in in but matters jurisdiction especially important. it is Otherwise parties courts and the expend great must on energy, not dispute the merits of settlement, but simply deciding whether power a court has the to hear a case. When judged these terms, Appeals the Criminal Act is a failure. Born of compromise, and no reflecting coherent allocation of appellate responsibility,63 Criminal Appeals proved Act a most child unruly that has improved age. with statute’s roots are grounded in pleading distinctions that existed at common law but Congress proposed statute, to remove this limitation. The which terminology, appeal common-law avoids would allow an from a jury after decision made was sworn cases where all Jeopardy permit Double Clause would it. See H. R. 91st Sess., Cong., Cong. (daily 29, 1969). 1st 115 Rec. H10274 ed. Oct. 62 Rep. Atty. 4; Hearing Granting See 1907 see Gen. also by Appeals Sustaining United States from Decisions Motions Suppress Evidence, before Subcommittee No. of the House Judiciary, Cong., Sess., (1954). 15, p. Committee on the 2d ser. bar, example, Motions for can appealed be to this irrespective validity Court ease whether the involves or of a construction statute. pro with the to coincide fail instances,

which, most Pro of Criminal Rules Federal categories cedural uncertainty create the statute only does Not cedure. analyze the nature one requirement its to determine in order Court of the District decision distinc common-law the class of within whether it falls it has also authorized,64 but appeal for which an tions appeal- which an over the court to confusion engendered brought.65 able decision should case, argument in this General, at oral The Solicitor which problems that “there are few forthrightly stated technical present such extreme occur so frequently in the office difficulty in the General’s [as] Solicitor We Appeals Criminal Act.”66 proper construction Nevertheless, his with this statute. share dissatisfaction statute, amend the Congress time decides to until such imposed by abide the limitations this Court must and ancient Act. this awkward must be We this case conclude jurisdiction. dismissed lack g0&R onW- judgment Black concurs the Mr. Justice IIC opinion. and Part of the Court part Blackmun took no in the Mr. Justice consid- or decision of this case. eration Burger, Mr. Chief Justice with whom Mr. Justice Douglas and Mr. Justice White join, dissenting. and argued

Both the Government Sisson have that this jurisdiction to review District Court’s Court has supra, See nn. 53-54. 65See, g., Zisblatt, supra; v. e. United States United v. States (C. Brodson, 1956). A. generally F. 2d 97 7th Cir. See Friedenthal, 9, supra, 83-88. n. Arg. ofTr. Oral 11.

action by virtue of the “arrest clause judgment” Appeals Criminal Act, C. § U. S. which provides for a appeal direct to this Court

“[f]rom a decision ^[1] arresting judgment conviction ^[2] for insufficiency of the indictment or information, ^[3] where such decision is based upon the invalidity or upon construction of the statute which the indictment or information is founded.” In rejecting arguments parties the Court holds jurisdiction that we have no appeal, hear this for the view opting “arrest of judgment” clause carries with it all of its common-law antecedents the present case does not meet the criteria required by the My common law. with disagreement the Court’s result and prompted by rationale is a fundamental dis- agreement with the analysis Court’s mode of and its excessive reliance on ancient practices of common-law England long superseded Congress. Acts of appears Section 3731 requirements set three jurisdiction this Court: (1) decision from which appeal is taken must be one “arresting of conviction”; (2) the decision must be engendered “insufficiency of the indictment or information”; (3) upon it must be “based invalidity construction upon statute which indictment or information is founded.”

I requirement, first the decision from which is taken must be one “arresting a judgment conviction,” can without undue violence to its lan- guage being construed as encrusted with the lore of centuries of common-law and the jurisprudence, Court form has so construed it. The of an “arrest of judgment” early was well established at an date the common law’s development; Blackstone was able to clearly describe a defined motion arrest as a device that proce- was 310 had been

durally guilty verdict after appropriate imposed sentence. had judge but before rendered allocution, early permitting in an form court, The “anything if he had traditionally the prisoner asked him.” awarded why against should not be judgment offer prisoner could Commentaries *375. Blackstone, 4 W. indictment, exceptions to respond offering then forth either certainty setting .in “as for want of sufficient Ibid. If or the offence.” person, time, place, entered an arrest successful, court prisoner was Also, law, the common stay of the judgment. judg- not to arrest ought “the Court it was settled that upon upon appearing not the face ments matters itself, judge upon the record their but are record; may judgment.” of their grounds know successors Bishop, Rep. 191, 98 Sutton v. 2283, 2287, Eng. 4 Burr. in- added). The record (K. 1769) (emphasis 193 B. roll; than the “nothing cluded more of the evidence nothing the common-law knew indeed, allowed until the of Westminster taken at trial Statute to be exceptions and a sealed bill exceptions to be United roll on of error.” brought up with the writ Zisblatt, (C. Cir.) 2d States 740, v. 172 F. 2d 741-742 A.. dismissed on Government’s (L. Hand, J.), appeal C. (1949). 336 U. motion, S. all, learning if of the common-law

Much, early 1807, As the United transplanted to States. the existence of the motion recognized the Court Cantril, States v. (1807). And, United Cranch for the Court that 1820, Chief Justice Marshall stated apparent for errors can be arrested “judgment Klintock, States v. .” United 5 Wheat. . . the record . Bennett, Carter v. also 16 How. (1820). See Dustin, Bond v. (1884). 112 U. S. 604 (1854); judg- an arrest of requirement 3731’s § Whether jurisprudence, or the common-law incorporates ment whether it is simply viewed as looking standards Rule Fed. Rules Proc.,1 Crim. the Court has in dicated that believes that the decision the District Court here not one was “arresting judgment” because it was based on trial, evidence adduced at notwith precise standing I suggest, purposeful, delinea —and tions of an astute District Judge quite as familiar with history and background of this statute as are we.

The Solicitor General also has conceded that § uses the term “arrest judgment” its common-law However, sense. he has sought inescapable avoid implications of this concession arguing the Dis- Court, trict “in granting appellee’s motion, did not base wholly its action on the allegations of indictment, but used partial predicate as a for its rul- constitutional ings undisputed fact, appeared which from the evi- dence trial, that appellee is a non-religious conscien- objector tious participation in the Vietnam conflict.”2 The Solicitor argument General’s of jurisdiction favor seeks to avoid the District Court’s reliance on evidence out pointing the District Court’s decision did e., %. purport to be on the judgment merits, the evidence was not sufficient to appellee show that committed the offense charged, and thus was not a directed acquittal. He submits that the District Court used sincere, Sisson’s nonreligious form of conscientious Lias, (C. United States v. 1949), 2d 685 F. A. 4th Cir. supports view that the standards are the same for Rule 34 and 3731. § provides:

Rule 34 “The court motion of a defendant shall judgment if arrest or charge indictment information does not jurisdiction offense or if the was court without of the offense charged. motion in arrest of shall be made within days finding guilty,, plea after or or guilty verdict after contendere, or nolo such may within further time as the court during 7-day fix period.” 2Brief 30.

CO r-H <N its basis particular war as the

objection to a infirm constitutionally ruling the indictment of conscientious to Sisson. the evidence applied Since now, undisputed undisputed at trial3 and objection was the facts that the use of argues the Solicitor General in a by parties stipulation of facts here akin to a was that recognized has case, criminal and that this Court Court may the District stipulation such a be treated partic- bill of (like the indictment a supplementing Halseth, v. 342 U. S. ulars) He relies on United States . Fruehauf, U. S. (1952), and States v. 365 277 United (1961).4 indicates, ante, 27-4-276, opinion evi As see at the the Court’s objection trial was admitted at dence of conscientious that was closing during subject the and was discussed cross-examination solely Sisson’s “wilfulness” arguments, but the context of not was refusing induction, respecting not whether Sisson was or objector. a fact sincere conscientious of and involved dismissals Halseth cases Both the Fruehauf parties entered into trial. In Halseth the had indictments before stipulation purposes motion to dismiss. The indictment a a of mails charged an unlawful use of the in the words of the statute lottery par stipulated that the to deliver “a or scheme.” It was lottery if the ticular involved would come into existence operation. The put paraphernalia into District addressee the ground the statute granted a on the that Court motion to dismiss yet not apply to defendant’s that were did not lotteries such as necessarily relying par affirmed, on Court existence. This particular mailing See 342 under attack. ticular facts about Fruehauf, U. S. 146 S., In v. U. at 280-281. United States again charged words of (1961), appellant, the indictment money unlawfully representa statute, delivering to a union with filed Court ruled that a trial memorandum tive. The District judicial admission that transaction Government constituted did cover concluded the statute not at was a loan and that issue of appealed that construction the statute. a loan. The Government clearly had the “admission” refused to consider that The Court proving from the loan the Government trial foreclosed something a transfer sham or otherwise constituted upon much My disagreement the Court is based with grounds more fundamental than those which Solicitor com- General would use to avoid strictures In an concept judgment. my mon-law arrest of Appeals contemplates view the Criminal Act appropriate arrest of in other than a closed category by legal history. Specifically, cases defined into there is no reason for the to read today Court ordinary apart loan, violating value from an thus the statute. Accordingly, pass it refused to the merits and existing remanded the case for a trial on the indictment. Halseth and are issue inconclusive authorities Fruehauf stipulation supplement generate of whether a can an indictment majority recognizes

a basis for review under While § resolved, although purports the issue has not been here, rely Norris, to resolve it it does on United v. States U. S. (1930), policy construing Appeals and a of the Criminal Act narrowly express argument to doubt the Solicitor General’s accepted. should be

Norris, however, persuasive precedent. a There the de- permitted plea fendant was to enter a of nolo contendere to the charge in contained the appeared indictment. When he for sen- tencing, stipulation filed, a of facts was and he submitted a then judgment motion for of stipulation. arrest which relied the The District Court denied Appeals the motion but the of Court re- versed, concluding light the indictment was insufficient of stipulation. the Appeals, This Court turn the of reversed Court holding pleading guilty, may that after a stipu- defendant not then constitutionality late the facts test of his conviction. There suggestion was no that an would not lie where a statute was held applied unconstitutional as stipulated Indeed, facts. opinion the Court’s point seems at one suggest if the had plea, questioned defendant withdrawn his and then the con- stitutionality stipulated facts, question of his conviction on the would open S., have been consideration. U. at 623. Further, majority’s ultimate conclusions about the Act neces- sarily lead it into uncomfortable distinctions. For if the Govern- parties or ment a ruling want constitutional applica- about the bility of particular a a facts, statute to of necessary set it is part to set out those facts as a of the indictment or information. might might of of what cases all the niceties of class roll” com- “judgment been included in the not have outgrown We have formalisms. mon law. those can trial that evidence adduced at I conclude a mo- for by a district court as basis considered is used when that evidence tion in arrest of of constitutionality testing solely purpose for the I do because applied. so charging statute of the Crim- passage legislative history surrounding Congress contem- Appeals abundantly inal Act shows plated a The reasons review this Court such case. limitation, in the tech- for the face-of-the-record Court’s have judgment, common-law arrest of nical form an a reliance on disappeared, since and the Court’s long Appeals policy disfavoring appeals under Criminal misplaced. isAct reasoning pays

The scant attention to Court’s problem and to purpose Appeals of the Criminal Act in 1907 when Congress attempting was to solve passed. history the Act legislative the Crim- Appeals inal Act reflects strong desire number Attorneys appel- General the United States for an remedy remedy late selected criminal cases.5 Such provided had been and in but England States, some remedy lack of such the Federal Government all had “left federal criminal at the legislation mercy judges the district and circuit This defect single courts. operative became all the more serious because became just at of the for beginning increasing movement 6 control criminal through machinery.” social Congress, complete was not stirred to however, its action on the 5 Mersky Kurland, Appeals See The Case and the Criminal Act: Suggestion Statute, A Amendment of the Chi. U. Rev. L. (1961). 419, 446-449 Landis, J. Supreme F. & The Business Frankfurter Court (1928). deci- proposals court rendered its until a district federal Co., sion & F. 808 United Armour States v. (D. C. a to dismiss sustaining D. motion 1906), N. Ill. ending in which President prosecution a Sherman Act Theodore great Roosevelt had a interest.

The a passed, debate, gave House without bill that prosecutions United criminal “the same States all right review writ error given defendant,” provided that the defendant not twice be put in jeopardy for the same 40 Cong. offense. Rec. 5408 (1906). Senate, however, The accept refused to the House bill. Rather, its Judiciary Committee offered as a substitute a complicated more bill which ultimately was refined to become the Appeals Criminal In Act. part, relevant the substitute would have allowed writ error the United States decision arrest- “[f]rom ing judgment of conviction for insufficiency of the indictment.” Rep. No. S. 59th Cong., 1st Sess. (1906). When the substitute came to the floor Senate, the floor leader for the bill, Knute Senator Nelson of Minnesota, explained the need for the legisla- tion in constitutional terms: an indict- “[SJometimes ment is set aside on ground that the law under which the indictment was found held to be unconstitutional. object is to allow the [of bill] Government take up get the case ruling Supreme Court.” 40 Cong. (1906) Rec. 8695 (emphasis added). The bill put was then over in the absence of unanimous consent for consideration. When the bill returned to the floor, questions were with respect raised to the arrest of judgment provision prohibition regarding the against double jeopardy. proceed Unanimous consent to again withdrawn and was the bill again put over. 40 Cong. (1906). Rec. 9033 reported

An amended bill was out of committee in January of 1907. When this bill reached the floor, a

316 impact its place respecting three-day debate took

spirited discussed questions Indeed, among on an accused. a motion a defendant who succeeded was whether 41 prosecuted. See again could judgment arrest almost none (1907). 2192-2193 But Rec. Cong. scope judgment.” of an concerned the “arrest debate Attorney General be- who had been the Knox, Senator Senate, legislation did that “this say fore going of the law as it is understood along is the line Rec. Cong. under the common law.” England referred (1907). apparently this statement However, for it was appeal, to to right the Government “In immediately by England followed the observation: always had in criminal right Crown my right In own since its foundation the State case. overriding has been conceded.” Ibid. The manifest, legislation concern of the was with enacting Senate legal important ques- permit appeals that would subject always against jeopardy,7 tions to the bar double and concern carried over to the arrest of provision.8 Indeed, major limiting amendment by right by restricted the of review adopted Senate criminal the Government cases constitutional issues of construction of the statute under questions and which 41 Cong. the charge brought. See Rec. 2819-2820 (1907).

7 “The takes the risks of all of its Government the mistakes prosecuting judge trial, and officers of the trial give questions proposed appeal upon it an law raised trial and if the defendant to defeat the it defeats the trial.” 41 (1907) (remarks Knox). Cong. Rec. 2752 of Senator judgment] motion in arrest case in which the “[A tried, guilty has been in which he has been found defendant case, may technicality, merits of reason of some I if sense, use in its broad hand of the term the court is arrested imposing penalty upon Cong. (1907) from him.” Rec. 2753 Patterson). (remarks of Senator it thought illustration of what was Another the Senate from doing describing appeals of comes category emphasis the a “motion in arrest” from distinguishing (1907). See From “acquittal.” Rec. Cong. the latter, sure, to be there to be no was —no matter how had many judge errors trial committed along way acquittal in the form of errone- ous rulings majority other trial errors. As the noted, has an amendment adopted required which verdicts favor of the defendant could not be set aside on appeal. 41 Cong. (1907). Rec. 2819 The text “Provided, adopted amendment as read: That if upon appeal or writ of error it shall be found that there was error a rulings during trial, of the court verdict favor of the defendant not be shall set aside.” proponent Ibid. The of the amendment, Ray- Senator expressed ner, the view that the directed amendment was guilty, toward “verdict not whether the court or the jury . . .” 41 Cong. (1907) . Rec. 2747 (emphasis added). Here, of course, Sisson was not acquitted but was found guilty by jury. Further, the Court’s use of the Rayner support amendment reading narrow judgment” provision “arrest of incongruous is in the extreme in light fact amendment had no substantive effect was later from deleted the Act. See Mr. post, opinion, Justice White’s 344 n. 11.

“Trial errors” respecting the fact-finding function— which affect only particular trial —were distinguished from separated errors of law that had been from the trial merits, on the and that involved constitutional rulings that could affect future attempts the Government prosecute under the same statute:

“The defendant gets the benefit of all errors in the trial which are in favor, his and can challenge which all errors the trial are against him. It is the trial when he attacks too much certainly give conducted to or the law under which itself highest of their right decision people for their of statutes made upon validity courts Rec. 2752 Cong. crime.” protection against Knox). (1907) (remarks of Senator in arrest can “The motion any other condi- wholly inapplicable made —it guilty. a verdict of tion conviction —to than interposed guilty It after verdict of and before a will arrest alleged for an reason that legal judgment upon the ver- pronouncing the court in (remarks of Cong. (1907) Rec. 2753 Sen- dict.” 41 Patterson). ator with floor passed acquired the bill

The Senate Cong. 2825 February 13, 1907. Rec. amendments conference, on a but (1907). The House insisted The adopted the version. conference committee Senate ultimately conference committee bill was resulting (1907). adopted. Cong. Rec. which formed

Notably, the Senate bill the debates of total lack concern the basis the Act demonstrate forms niceties of ancient common-law with the technical where And, far from cases pleading. distinguishing from cases congressional act was invalidated on its face to applied invalidated as a situation that where it was clearly appear intended to debates Congress reach, the contemplate appropriate for to to both cases certainly evil aimed at —and the rationale this Court — enough encompass broad both situations. the Act is for purpose was to be “constitu- Appeal deciding “questions which, of law” if the questions,” tional dis- permitted stand, decision were could judge’s trict different treatment lead to conflict and under the same parts criminal country, statutes different with no for in this opportunity existing law resolution Court. The Government to have chance to “set- tle the law as to like character.” future cases added). Rec. 2194 Cong. (1907) (emphasis It imagine closely fitting is difficult to a case more into The this rationale than now before us. class of nonreligious objectors likely conscientious is not be a impetus small one. Indeed under the of this hold- ing likely it is whether or member grow. Yet not a of that can class constitutionally punished refusing to submit to induction depends per- now on where that son tried and by judge whom. That one district may entertain a different view of the than Constitution does another is an extraordinary for differing reason results cases rationally ought to be decided the same way with appellate review available to insure —and end. conclusion that this is not a “motion in arrest,” insulates judge’s constitutional decision from anywhere review or in Ap- the Court of —here peals. I That, submit, is precisely the situation Con- gress thought it was correcting Ap- with the Criminal peals Act. It is remarkable that the so Court finds it easy ignore explicit the meaningful legislative history which refutes its strained reading of the statute and history.

The common-law rule that an of arrest judgment could be based on more nothing than judgment the roll seems to have been required by of very existence limited record of day which did not include the evidence adduced at trial. Evidentiary matters were not before the appellate and it courts, would have impossible been for the arresting court’s “successors know the [to] grounds of their judgment,” Sutton v. Bishop, if supra, court considered arresting the evidence at trial. This problem no has such obviously in this case

Court before us con- The records providing appellate review. as a proceedings the trial transcripts tain of complete of matter course. admittedly the District Court while

Accordingly, evidence, for its including looked to demeanor evidence, “genuinely and was findings that was “sincere” Sisson his profoundly conscience,” this use governed from bar Court con- purpose should not now this judg- an of action as arrest sidering the District Court’s evidence was used to test long ment. As as the applied statute as constitutionality charging sufficiency and not to test defendant, indictment, proof against allegations the use of an purposes the evidence consistent with of judgment. arrest finding

In has no case, there been Sisson did not there been charged; commit the acts has a his holding by judge the trial acts were constitu- tionally holding that stands as the sole protected —a impediment imposing jury guilty; a verdict no acquittal pres- verdict of our was ever returned. Even ent Rules of Procedure Federal Criminal make similar Judgment Acquit- distinction between a “Motion for tal,” Judgment,” and an “Arrest of Rule Rule 34. “if former entered the evidence is insufficient to sustain while charged, conviction” offense the latter is the indictment granted charge where “does Rule 29 judge offense” at all. allows reserve his a motion for until acquittal decision on If jury after the has returned a verdict. he then grants stands motion, acquitted, again the defendant but the evidence has only because been found insufficient to grounds Where the support charge. granting independent an “acquittal” on legal an are based deci- interpretation sion about the or construction of the stat- ute, judge’s judgment” action will an “arrest be United States even he labels it an though “acquittal.” v. Waters, (1948). 2d App. 84 U. S. D. C. F. fully

I Congress, believe no cannot aware that appeal for a or judgment was available directed verdict v., contemplated n. o. form of judicial this action nonappealable should be accorded the same status. sophisticated Moreover, District could have Judge n. o. v. if he wanted to avoid re- entered a view or if he he thought was indeed passing sufficiency of the evidence meet allegations of the course, indictment. Of his are not views con- I trolling, but am comforted his appraisal and quite precisely satisfied he knew what he was doing thought —or he did the assumption that action was reviewable his principles well-established ignores. Court now The Court also inveighs against “broad” construc- tion Act, noting this Court has denominated an in a Government criminal case as “exceptional as right,” unusual, excep- “something Ante, tional, not favored.” at 291. This is an odd char- acterization; the right precisely “exceptional” as “unusual” as Congress makes it. This Court has no power to scope appellate define the of its own review subjective this context and a distaste for review government proper instance of has place adjudica- no tion. The tendency jurisdiction with miserly our prevent did our construing three-judge court acts to include cases where statutes were held unconstitutional Query States, v. United applied, 316 U. S. 486 (1942); ed., Wright, C. Federal Courts 190 (2d 1970), should not more carry any weight re- assessing our sponsibility to decide the constitutional issues of holding a when is constitutional

case,9 the more so great moment.

II of the Dis- requirement, the decision The second “insufficiency of "the upon must rest trict Court here. The question difficult indictment,” presents also my view, that both emphasizes, wrongly, Court Court’s decision rests upon which the District grounds successfully In an asserted. are defenses that Sisson need not ordinary case, indictment, sufficient, This, however, not’ anticipate affirmative defenses. ,in ordinary indictments of this case. The cases only typically charge Selective Service nature registrant wilfully fail and unlawfully, knowingly

“did duty of perform required and refuse neglect Military him under and in the execution of the tangentially The one case which this Court has even con at can ever be considered sidered whether evidence adduced trial v. judgment a motion in United States as the basis of arrest of Green, (1956). majority Court was 350 U. S. 415 There the of the explain by explicitly pointing impelled the basis for its decision upon out that “the record does not contain the evidence which allegations court . rule acted. . . We [district] , Doug- S., of . 421. Mr. Justice the indictment . U. Mr. with whom Chief Justice Warren las, Black Justice joined, ground dissented on the Court’s “order the District granting part in arrest at least in the motions rested insufficiency upon support of the evidence to the conviction.” adopted by majority position Ibid. neither the nor that But remotely dispositive taken the dissenters Green present Here, case. in contradistinction to the view dissenters’ Green, the circumstances evidence adduced at trial was used solely testing purpose the District Court the constitu- tionality applied; opinion statute District Court’s con- sufficiency of cedes the the evidence to sustain the verdict if expressed opinion constitutional views in the are sustained. rules, regula- and the Selective Service Act duly pursuant thereto, tions and directions made particularly 1632.14, Regulations 32 Code Federal he neglect comply that did fail and and refuse to with an order of his local draft board to submit to induction into armed States; the forces of the United in violation of Title 50, Appendix, United States Code, Section 462.”10

Yet allegation terse subsumes its language myriad of elements that may Government be called if upon prove to appropriate defense makes an chal- lenge. Prosecutions for to refusing submit induction to are they incorporate unusual because into judicial m,uch proceeding that has occurred in the administra- processes System. tive of the Selective All of Service appeals compensated courts of have for the administra- proceedings tive holding that the Government need plead prove many and elements that would nor- mally be a part its case-in-chief. The courts appeals presumption have devised a regularity which attaches to the official acts of that, the local boards alone, standing preclude is sufficient to reversal of conviction when given element is not raised at trial. particularly States, Yates v. United See 2dF. (C. 1968) (presumption A. 1st Cir. of regularity attaches requirement). order-of-call if However, the de- prima fendant succeeds in making a against case facie the presumption, put the Government proof to its particular on the element of the offense. United See Baker, (C. States v. 2d 1969). F. A. 9th Cir. By analogy, the Government required plead is not prove and that properly defendant was classified I-A as category available for Rather, induction. 10App. 6. if at trial he the classification challenge

defendant can force claim, his the Government preserved has for the there was indeed a “basis fact” prove classifi- Thus, establishing appropriate classification. actually case, an element of Government’s cation to the administrative given because of the deference but preceded proceedings, the criminal process from pleading proving has been excused Government general allegations it in the indictment. Since actually the indictment do subsume the element the District Court held was based an invalid statute applied Sisson, court’s decision was based “insufficiency meaning of the indictment” within the §of 3731. appears also to assume that an indict- Court may charged

ment be “insufficient” because the acts constitutionally g., be an offense, cannot made e. where they the existence of a privilege show constitutional But, that bars conviction. the Court concludes that “this does not allege indictment . . . facts that them- availability selves demonstrate of a constitutional Ante, privilege.” 288. view,

In my suggestion simply the Court’s differently approached, same as the argument, argument in that a motion arrest can be based facts on the face of the In appearing cases, record. both I single question, it, Congress as see is whether drew a purposes appeal by distinction for the Government, between cases which district court found the entire unconstitutional, statute and cases .in which the court found the statute unconstitutional applied. as expressed

The has view been Appeals Criminal badly gives Act is drawn and rise to prob- a multitude of lems. can all agree We infirmities of the statute hardly an to but this is excuse take liberties with its reasonably plain purposes articulated its terms. Prior urgings Congress addressed to the correct this situa- today tion have gone unheeded. But the Court’s holding powerful spur argument corrective action Congress.

Mr. Justice with The White, whom Chief Justice Douglas and Mr. Justice join, dissenting.

I agree I with Chief Justice can that this case appealed by the Government under the “motion ar- provision of Appeals rest” In con- Criminal Act. trast to the rather purpose Act, clear remedial not a single passage legislative history indicates awareness Congress using the words it was had the effect of distinguishing congressional cases where Act held invalid on its face from it was cases where applied invalidated as to a within Act’s sub-class intended reach. In cases, both the indictment is “in- sufficient” to state a valid In cases, offense.1 both necessary findings” particular “factual give de- fendant ruling benefit the constitutional are little more findings than as to defendant’s raise standing they constitutional are not as to the findings issue— sufficiency prove of the evidence to the offense alleged Thus, if Wyzanski, the indictment.2 Judge without making as to findings sincerity, Sisson’s had held 1 to against Failure set out the of a valid elements offense only way named defendant is the an indictment could ever be uneonstitutionality (as opposed “insufficient” because of the construction) underlying of the statute. 2 majority, opinion The as The Chief Justice’s makes clear later, infra, and I as discuss in more detail at 331-332 and n. 332- 334, repeatedly ignores necessary this difference between the facts to claim, secure on relief for Sisson his constitutional and the facts wilfully refusing relevant induction. to the offense overbroad unconstitutionally Act Service the Selective in violation draft purported subject because objectors, sincere, nonreligious Exercise Clause of the Free would face clearly jurisdiction Court would have this the claim without could raise question whether Sisson allegedly protected of the that he was a member showing Alabama, If (1940). Thornhill v. S. 88 310 U. class. Cf. as here held it made, judge to be showing such a had relevant standing the facts did, question surely question are from the question distinct offense, defendant committed the whether validity vel non of the statute.3 Cf. question Organizations Processing Association Data Service v. Collins, Camp, 397 Barlow v. (1970); U. S. 150 U. S. (1970). II parties in We asked the this case to consider whether jurisdiction on the ground § U. S. C. 3731 confers bar, that the lower court had motion in when sustained “a put jeopardy.” the defendant has not been The majority, a lengthy after discussion of the “motion in provision, arrest” condescends to address a few remarks question, with suggestion that it need not really all, discuss the issue at since .it has concluded Judge Wyzanski’s “an acquittal.” action amounted to As Mr. majority recognize difficulty seems to it would have justifying appeal challenging Wyzanski’s a refusal to hear an Judge ruling Clause, simply on findings the Establishment because had to standing ante, be made as to the defendant’s to raise the issue. See at 284 n. 16. But is no respect there real difference in. this between Judge Wyzanski’s rulings: free exercise and establishment both— majority require concedes, factual determinations that ibid.— belongs Sisson to the class is entitled to raise the constitu being claim that is If ruling tional asserted. first acquittal,” ruling second, might judge “an so the since the jury infra, have sent the establishment issue to the too. See 327-328. .indicates, lengthy concurrence dis-

Justice Black’s provision equally cussion of the “motion in arrest” is superfluous if it has been indeed is so clear that Sisson “acquitted.” In reality, the bald assertion that Sisson simply has been at issue: “acquitted” begs the matter until one knows what a in bar” as well as is, “motion arrest,” “motion in mo- granting and how such from one granting acquittal, tions differs confidently Wyzanski’s cannot attach label to Judge action. majority reason that gives concluding been acquitted actually

Sisson has based, on what might but on have happened, happened. what Since Wyzanski have Judge could submitted the case to jury reflecting on instructions his law, view jury since the so could have instructed returned a verdict of “not guilty,” pretend therefore we must that that actually what has happened. That is non- suggestion sense. One does not determine effect legal “what ante, [Judge Wyzanski’s at 279 actually was,” decision] 7, by asking n. legal might “what effect decision If have been.” were key this question, then jurisdiction Court should not have had in United States Covington, v. (1969) J.). U. S. There (Harlan, judge accepted the trial argument defendant’s Fifth prevented Amendment the Marihuana Tax Act from constitutionally being applied to him. Under majority’s view, that action would amount judge might have acquittal given because the case jury under instructions acquit should if it found the necessary facts to sustain the defend- g., ant’s that he privilege was not one of the —e. marihuana registered dealers whose legal conduct was Indeed, law. if applied state consistently the majority’s theory would mean that there is no case appealed could be Court under Criminal Act. Appeals of the provision

“motion bar” have sent might a judge that always For be true it will his reflecting under instructions jury the case if the good, in bar was so that the motion view that it motion, relied on the should jury found the facts acquit.4 majority’s theory no crim Consistently applied, the would make judge a dismisses this Court. For even where appealable

inal to case grants in arrest because of defects “on a motion an indictment or might always have record,” is true that he sent face of it the the acquit if found jury, instructing it to the case to indictment, insulating from the case alleged in the thus facts acquittal. jury intervening review because of on “what majority’s protest conclusion does not rest that its The ante, highlight simply 290 n. to might happened,” serves have plain is that no ipse opinion. of its For the fact dixit nature Wyzanski’s explain why Judge action given is ever to other reason question acquittal. in this directed post-Verdict to a amounted developed defense, relying on facts an affirmative case is whether judge jury guilty, after verdict of and the trial at trial sustained appealable in bar.” It is no answer to to an “motion can amount Judge question simply repeat this is a case which this Wyzanski guilty sustained defense on after a verdict Sisson’s question-begging can developed at the trial —a clearer case of facts only poses hardly imagined. simple restatement Such question that is be decided: does such action to a amount “acquittal” so, why? and, if nonappealable question suggested by majority in its One answer to this Ball, acquittal ante, United States v. at 289-290. An citation to putting type that cannot be reviewed without jeopardy in. for the same offense violation of the defendant twice history Indeed, Congress legislative Constitution. shows decision, strongly suggests Ball was well aware “acquittals” nonappealable Congress thought that were those in incompatible jeopardy provisions review was with the double which See, g., Cong. Fifth Amendment. e. Rec. 2193. But citation, majority really despite I cannot believe that the means constitutionally Congress could not suggest authorize an precisely parallel appeal to this one in with in a case accordance currently sought legislation. throwing That would indeed be might have been” and The difference between “what actually happened large what .in this case is and critical. jury actually “acquits” under an erroneous Where the leading a successful reversal instruction, problems a new trial would raise serious constitutional through the defendant the hazards of another placing In there case, however, trial the same offense. trial, is no possibility subjecting Sisson to another overturning that, decision what- factfinder’s law, Wyzanski’s If Judge ever go the Sisson should free. legal theory incorrect, jury’s guilty— is the verdict of simply with no in longer remains “arrested” — effect. Knox precisely

It was this distinction that Senator in referring majority to in the passage quoted ante, opinion, at 289: defendant retains the benefit by “in the error whatever committed the court trial”; gets but the appeal “upon ques- Government an baby out in order to with bathwater declare this case an “acquittal” being avoid thus forced reach the merits now. deciding

What other reason is there for this is case “acquittal” suggestion question ? One obvious is that the whether “acquittal” judge’s single answer, action amounts to an admits of no depends inquiry but making on first the reasons in the place. inquiry Congress Here the an is whether meant to allow appeal applied where a statute had been held as to a class invalid jeopardy within its reach and where the defendant’s constitutional way by appeal. majority’s interests are in no threatened The respond history refusal to legislative absolute discuss or infra, question, below, 335-346, set out see this at indicates that approach Judge Wyzanski also lead would to the conclusion that granted “acquittal.” appealable an in “motion bar” rather than an other noncircular answer that I can find in the majority’s opinion acquittal judge an is that this is because the “might jury have” sent the case to the under his novel instruc- tions, guilty,, resulting in a verdict of not from an which jeopardize would indeed the defendant’s constitutional interests. majority’s answer, indicates, very as That discomfiture not good one. the trial.” by defendant to defeat of law raised

tions majority’s quotation in the is also reflected The distinction Ball, ante, 289-290, v. where the from United States at tied “acquittal” an question what constitutes put the defendant would be “twice question of whether appeal. an jeopardy” the Court’s reluctance to discuss suspect I distinguish granting and to provision “motion bar” acquittal from from the motions stems fact such there .is no doubt arrest,” unlike the “motion that, “motion bar” sets forth an affirmative properly that a necessarily requires not defense, which resort facts found in indictment or on the face the “record.” majority’s most of the this case is argument Thus appealable as a “motion in arrest” because “[t]he ante, rests defenses,” decision below on affirmative 287-288, is simply irrelevant far as the “motion bar” is concerned. majority fact,

In as the seems to concede re- its reject square precedent issue, luctance see ante, phrase 300 our 53, at n. cases make clear that in plea “motion bar” would include a like Sisson’s laws the selective service are unconstitutional to The applied adopted him. Court has never the view encompasses a “motion in bar” only the common-law acquit, convict, pardon.5 of defenses and autrefois autrefois did Congress passed Neither when the Act. The in plea show that the bar was thought debates embrace variety such a of defenses as the statute limitations, e. 41 g., and a Cong 2749, plea Rec. of Fifth Amendment

5 majority’s opinion will search the in vain an explana One why pinned “motion in tion as arrest” must be to its common- meaning, law majority “motion in bar” —which while con also ante, unique meaning law, had a cedes at common see at 300 n. 53— Covington, has never been so confined. See United States v. 395 Blue, United (1969) (Harlan, J.); States U. 57 v. 384 U. 251 S. S. (1966) (Harlan, J.).

331 see 41 immunity, Cong. 2753. most thorough Rec. in in discussion “motion this Court bar” occurs in United opinions in the concurring dissenting Mersky, States v. 361 (1960). U. 431 S. Justice Mr. encompass that a motion in bar argued would Brennan prevent would possible affirmative defense that every for a narrower argued retrial. Mr. Justice Stewart concept interpretation, plea similar con- e., plea i. fession and “did contest avoidance, alleged declaration, facts but relied on new deprive matter which would ordinary those facts their Id., legal effect.” at 457. interpretation

Even under the of Mr. narrower Justice plea qualifies Sisson’s as a Stewart, “motion bar.” For majority’s opinion as the clear, makes the crux of against simply the case Sisson was whether or not he wilfully had refused to submit induction; question sincerity “new deprive his matter” relied on to the fact of wilfull ordinary his refusal of its effect. legal ante, Blue, United States v. majority opinion, 276; See (1966) (Harlan, J.). 254 our U. S. Just as permitted cases have the “motion bar” embrace g., Goldman, e. United States v. pleas, see, limitations (1928), pleas priv- U. S. constitutional Murdock, see United States v. ilege, 284 U. 141 (1931), S. they permit so too the “motion bar” to reach cases of sort, validity attacking applied the statute as See United States Covington, to the defendant. v. Blue, United States v. (1969) U. J.); S. (Harlan, supra, at 254 J.). (Harlan,

Procedurally, plea fact sustained jury after a verdict of conviction —and the fact that his judge labeled action as something other than a “mo tion not prevent in bar” —does finding a “motion in bar.” Zisblatt, United States v. 172 2d 740, (C. F. 742 2dA. appeal dismissed, 336 Cir.), U. 934 (1949). S. Even 332 pleas could recognizes that such history legislative Cong. had begun.

be the trial after sustained Nor is there (remarks Rayner). of Rec. Senator motion arrest— the case of any doubt —unlike even factual though bar results proper that a motion to be tried. See the motion have issues relevant Whyte); of (remarks Rec. 2194 Senator Cong. id., United (remarks Patterson); at of Senator Zisblatt, supra. States v. Indeed, Mb. Justice Harlan recently possibility trying referred to the facts in bar, that were relevant to the motion judge United States v. from separate general issue. See Covington, supra, words, In his at 60. defense “[a] of the 'capable gen- thus of determination’ trial [without if of the surrounding eral trial facts the commission issue] would alleged offense no assistance deter- Ibid. That de- mining validity the defense.” scription noted, fits precisely since, already this case as majority pains point itself careful out that takes wilfully in- “general issue”—whether refused Sisson separate duction —was at all times from the issue raised by Sisson’s constitutional claim.6 majority judge's jury

6 The concedes that instructions to the question sincerity question from the excluded Sisson’s ante, Indeed, guilt under See Sisson’s Act. at 276. Sisson’s sincerity wilfully possibly could not bear on whether had Sisson classification, refused induction: since Sisson did not seek a 1-0 argue “sincerity” he could not even his to show “no basis fact” out, Moreover, majority again points for his I-A classification. as the ante, recognized objec at 2, n. even Sisson “selective” his obtaining from Act. tion to war foreclosed him C. 0. status under the sincerity was thus to his defense Sisson’s relevant constitutional have and was as distinct from the issue on the merits would sense, prosecution was time barred. In that been claim that questions part were factual relevant to Sisson’s motion not issue,” opinion, general I do read The Chief Justice’s “the wholly context, as defense in a different which discusses Sisson’s ante, majority’s anything suggestion, suggesting different. case, then, This is as indistinguishable far as the from United provision “motion bar” is concerned Zisblatt, States supra, v. the majority which cites with approval its throughout opinion. There, as de- here, privilege speech may that a defense of case involve facts inextricably general issue, majority’s intertwined with the and the Fargas, ante, 301, perfect reference United v. to States at are examples repeated grips refusal to come to with the facts particular case where the issues were not and could not jury might have been Sisson Whether have demanded a intertwined. question pre- trial on the facts relevant to his motion is also here, anymore Covington, sented than it was in United States v. (1969) (Hareah, J.). 395 U. S. 57 legislative history

The trying go makes clear that facts that plea, opposed go “general as to facts that issue” just (whether act) the sense described the defendant committed the appealable long results in an motion in bar as as the defendant “put jeopardy.” has not Cong. been Compare Rec. 2750 (remarks (remarks Nelson), id., of Senator with at 2753 of Senator Patterson). text, infra, See at The 340-341. reason for the distinc- appears wholly tion be permitting appeals sensible of not one might overturning findings involve of the trier of fact— judge Nobody whether it jury. suggests in this case that Judge Wyzanski’s findings sincerity reviewable; as to Sisson’s are only question findings legally whether those relevant. are sympathize I majority’s distinguish While can with the concern to Covington, distinction, I do purported not see the relevance 302-303, ante, There, here, see judge explicitly at n. 56. as the trial refused to declare the relevant Act face unconstitutional on its necessarily findings concerning rested his action on factual particular defendant, Supp. 886, fact, F. see 282 In 889-890. majority’s reasoning, under the it would have been even easier argue Covington prove facts needed the constitu- part “general tional defense issue,,” proof were since at a trial on necessarily would developing merits have involved such things major- defendant’s status as a marihuana dealer. The ity suggests that there the Government conceded the relevant facts, they whereas here suggestion were contested. While that highly dubious, itself opinion, ante, see Chief Justice’s majority until explains how that distinction is at all rele- of the indictment moved for dismissal fendant the statute of that case defense —in of an affirmative basis judge ruling reserved There, here, the as limitations. returned a verdict jury the had motion until after the here, judge granted as then There, of guilty. on matters the rec- motion, relying “outside defendant’s appealed Ap- to the Court The Government ord.” question became whether or not peals, where directly have been taken to this Court appeal should Judge the Criminal Appeals Hand, under Act. Learned in deciding that the trial court’s action amounted to sus- in made taining bar, motion short shrift of argu- indistinguishable ment the case was from the case acquittal. of directed verdict judge “Had the trial directed a verdict, so that it necessary upon subject would have been reversal to the defendant trial before a jury, second that' jeopardy,’ would be ‘double but, although Con- gives person stitution accused benefit of jury in his mistakes favor first he encounters, passed upon it has guilt whether his not, or it does privilege not extend that mistakes his favor by judges. Indeed, opposite were the all true, appeals from decisions arrest judgment would constitutionally be futile because no could conviction be entered when they were re- 172 F. versed.” at 2d, 743.

vant, reiterating again only begs distinction posed by the issue supra. See this case. For n. whether the issue was conceded or majority’s contested remains true analysis that Cov- ington distinguished cannot acquittal from a directed “entered ground on the the Government did present evidence prove [Covington] sufficient to was faced with a sub- [not possibility Majority stantial ante, opinion, incrimination].” 299. Zisblatt, in this case as in question, then,

The sole “put jeopardy” been as whether the defendant has Appeals in the Criminal Act. That phrase is used question phrase in turn centers whether the to be in which case a defendant would be literally, read or jeopardy jury .impaneled, as a whether soon phrase “legal” is to mean jeop- “constitutional” ardy, in the sense that even if the Government were to appeal, succeed on it would be advantage unable take its proceedings against success new the defendant. Although Government has to read chosen the statute in the literal former, sense, this Court has never resolved Judge issue. Learned thought Hand there was a “more plausible than for argument” latter, the “legal jeopardy” view, but the Government dismissed its to question this Court before the could be decided. Zisblatt, supra, United States v. at 742.

The legislative history of the unmistakably 1907 Act shows that Congress meant to the allow Government an appeal from a decision sustaining a motion in bar .in every except case where the defendant was entitled to protection the of the guarantee constitutional against jeopardy. double I find the debates so on convincing point that I am at a loss to why understand readily Government has so conceded the issue unless it be to appearance maintain the of consistency, and to ,in protect its interests securing new criminal appeals legislation before Congress.7 Certainly that concession

7 majority opinion, ante, 306-307, See at course, legis n. 61. Of sought shortly passed— lation that the Government after the Act was requiring a defendant to raise his before defenses trial —does not necessarily then-Attorney mean interpreted “jeop that the General ardy” jeopardy. legislation to mean literal would have been equally prevent waiting needed to defendants from until “constitu jeopardy” tional attached,, securing had before relief a motion certainly no Court;8 even more it is does not bind this majority’s conduct its own for the failure to excuse of the relevant debates. examination cover- Senate, in the days of three full of debate Out see Congressional Record, pages than 30 ing more 2744-2763, 2818-2825, 2190-2197, Rec. Cong. cite in foot- passages total of three majority finds ante, 304-305, interpretation, see support note as for its in context placed case, In each statements n. 57. majority’s conclusion. just opposite prove before debate even reference, passage to a The first Spooner’s 9033, is Senator began, Cong. Rec. thought “constitutional Indeed, it was in bar. it is because (United v. Trust Case States jeopardy” had attached in the Beef (D. 1906) appeal was Co.), Armour & 142 F. C. N. D. Ill. that no infra, Trust Case thought lie. at 341-342. Since the See Beef Act, it Appeals motivating force behind the Criminal was the Attorney legislation that General to seek would natural for the decision, on get a force a similar defendant to raise and would began, avoiding possibility plea in before thus his bar trial jeopardy. by being legal escape placed in defendant would th§ argue for benefit To the statute was enacted hardly Department justifies relying the Government’s Justice authority interpretation proper as additional concession relationship Department Act. The of Justice Appeals agency statute Criminal Act that of an is not Act’s creating agency charging the enforcement of the it with question provisions. Court’s Indeed when comes to the of this it authority special exploring and jurisdiction, no institution has question determining The Solicitor other than Court. special simply litigants; give in is General this case one the to very weight strategy arguing in does to his this case at the least contrary Sisson, seemingly to own inter disservice to his who— namely, have ests—has also made a concession: that this Court does jurisdiction under both “motion bar” and “motion in arrest” the Department provisions. of the Justice “motion in The views the precisely weight provision bar” are entitled to the same as majority Department’s views and extends to Sisson’s to the Justice provision. views on in arrest” the “motion aris- question applied questions whether the bill to ing before majority of the impaneling jury. As acknowledges, immediately Senator Nelson corrected Senator Spooner, out was pointing key question “jeopardy,” impaneling not the The entire jury. brief occurred exchange debated, before the bill was fur- ther consideration immediately postponed been having objection of other matter pursuing Senators time. F. See Frankfurter & J. Landis, Supreme Business of the Court 117 n. 68 When (1928). debate was resumed at Congress, next session Spooner unmistakably Senator jeopardy indicated that being constitutional, legal sense, used opposition direct to the majority views the now tries to him: ascribe “The question is whether a man subjects it under any aspect of it to the of double danger jeopardy. I am if bill, content leave it shall it, become law, Supreme United Court States. It is is their function to determine what jeopardy. It is their function to citizens protect the of the United invasion of the against any States I constitutional as guaranty jeopardy. to double think upon protect we can far rely court as the requires Constitution it all defendants . . . .” 41 Cong. (remarks Rec. Spooner). 2762-2763 Sen. In the second passage, Cong. Rec. the ma- quotes jority proposition Senator Nelson for the that- no appeal would lie a jury impaneled. where had been The actual is quotation that no would lie “where jury impaneled has been and where the has defendant been tried . 41 Cong. . . (emphasis Rec. In added). clear context, is Senator Nelson interpretation venturing “jeopardy” legal dispute point The whole at this sense. the debate 338 bill, opposed who Rayner

primarily between Senator supported bill. Bacon and who Nelson, Senators person to that a proponents pains were at show any of the “put jeopardy” not twice in under could (remarks provisions bill, Cong. Rec. Bacon). Senator McCumber; Sen. remarks Sen. any- difficult was for Rayner showing how it was intent just “legal definition of what give adequate one to sug- supported a return to the House jeopardy” is—he which have the defendant gestion, given would decision or not he had benefit his favorable whether single can “put jeopardy.” passage been But inkling to side had slightest be cited show that either technical, “jeopardy” being was used but its legal interpreted by sense as this Court and state courts. point objec- That was the whole Rayner’s Senator “jeopardy” vague nobody tion: was too a term, because could decide when exactly jeopardy constitutional had attached. How majority can Nelson rely Senator for the “jeopardy” jeop- conclusion that means “literal” ardy is particularly difficult to understand, given the unambiguous explanation Senator’s own that as author of the bill, what he meant was “constitutional” jeopardy:

“I put aimed the bill such form that it would cover those cases in which the exactly defendant put jeopardy Constitu- had not been tion the United States. I believe that the bill is limited strictly that matter.” Cong. Rec. (emphasis added). Bacon during

Senator same noted exchange provisions had “jeopardy” put been “out abun- dance of caution,” Cong. proceeded Rec. 2191. He remarks that he explain precisely his meant what majority today declares he could not have meant— namely, Congress simply emphasizing that attempting subject was not a defendant to constitu-

339 by jeopardy appeal. tional government double a successful In fact, “jeop- when one of the asked whether Senators ardy” possibly sense, was to be taken in a literal Senator reply: Bacon hastened to being

“That what the law put is not means jeopardy at all. ‘being jeopardy’ The words entirely are a technical which does not relate phrase, to the fact that a man in danger is as soon as an preferred indictment 41 against Rec. Cong. him.” 2191 (emphasis added). hardly

It “superfluous” for guard Congress against a construction of an Act might that render the Act majority unconstitutional. And the fact that would have differently written the statute to avoid what it calls “superfluous” is no reading, ignoring excuse explicit indication that that is exactly the that reading Congress phrase meant the to bear.9 interpretation This is reinforced points at other in the debate explains why in a manner “jeopardy” language that also provision, occurs in the motion-in-bar pro and not in the other thought normally visions. The Senators that indictments would began, be dismissed before trial so “jeopardy” there would be no problems allowing appeals Similarly, in such cases. a motion thought in arrest jeopardy after was to involve no problems, because the defendant made the motion himself in an attempt guilty. Cong. overturn verdict of 2753. See Rec. recognized But was granted the motion in bar could be started, Cong. 2749; after trial had see 41 Rec. and it was “jeopardy” not obvious whether such a case would have at Hence, prevent tached in the constitutional sense to retrial. “jeopardy” language was added “out abundance caution” to Congress simply bringing provision make clear that into line provisions: e., appeals only with other i. were to lie where jeopardy” attached; jeopardy, “constitutional had not not the but impaneling jury, appealability was to be the test of in the just case the motion in bar as in the case of the motion in (remarks Cong. arrest. See Bacon); Rec. 2191 Senator Cong. (remarks Nelson) (“out Rec. 2756 Senator of extreme to a remark Sen- refers majority’s passage final in arrest was a motion suggesting ator Patterson be raised the bill that could only provision concedes, one majority trial had As begun. after a discover that need read on a bit further to Senator when immediately suggestion retracted that Patterson could also “motion bar” challenged, insisting appeal would had and that an granted begun be after trial jeopardy” problem no of “constitutional long lie as vig- Indeed, argued Patterson presented. was Senator in jurisdiction orously that there would have been Trust in in was Case—a case which the motion bar Beef not had but was also granted begun, after trial jury. in judge’s reflected instructions to Senator particularly interesting because, Patterson’s remarks are apart he is con- right question from whether he be- jeopardy, stitutional makes clear distinction acquittal tween a motion in bar which majority blithely ignores: special

“A plea in plea bar ... is a that does not in guilt relate to the or of the defendant innocence the sense as to whether he did or not commit the he A in special plea act which was indicted. bar is that which is up special set as a defense not- withstanding the defendant may guilty be of the offenses with which he is charged; it is for some yet may outside it have matter; been connected the case. The special with in plea bar that was filed the indicted Chicago packers very good is a plea illustration that. Their in bar set forth the having fact of their been or led, induced whatever it may been, have make communications exactly put harmony caution and to and in line with the provisions preceding paragraphs, of the three expressly have we provided put that where jeopardy the defendant has been he reindicted”). can be not officers of Government with reference to their

law attorney information gave business district which enabled him to the indictments bring about had ref- help prosecution. and to That no their It erence to the or innocence of the accused. guilt independent of fact was pleading was packers crime for which had indicted. those been jeop- there could no “Therefore, Mr. President, ardy in deci- a case of that kind where there was a special upon plea sion because it is not bar, plea the insuffi- guilty guilty ciency special plea of a it is determined; bar is non obstante whether the defendant or not guilty guilty.” Cong. Rec. 2753.

It from obvious these remarks that Pat- Senator terson did not think question “jeopardy” provision simply under the motion-in-bar a ques- jury impaneled.10 tion of whether the been had interpretation doubly This is made clear the remarks Nelson, the of leading proponent Senator the He bill. also addressed himself to the Trust Case and, unlike Beef he Patterson, suggested Senator that case that could appealed not been have under the the Act. But reason he gave that conclusion not jury was that the had the impaneled, jury impaneled been but that had been returned had a verdict not under guilty and the thus the judge’s instructions, placing “legal defendants jeopardy”: jury

“In that case a was impaneled, and the ques- whether the im- tion defendants were entitled to 10 willingness majority’s apparent accept Senator Patterson’s Trust ante, Case could suggestion appealed, have been Beef 57, virtually point at 304 n. concedes issue. For the whole distinguishing plea merits, between and the issue on the giving his plainly “legal views as to Senator what constitutes jeopardy.”

munity immunity they under the law because had Bu- and the officials his furnished Mr. Garfield and jury, information was submitted to the reau found for jury under court instructions the defendants. In that case the defendants jeopardy had been in and in that Constitution case no could lie.” 41 Rec. Cong. beef-trust (emphasis added). (remarks Nelson). Cong. See Rec. Senator majority’s was thus about the talking Senator Nelson judge gives have been case”—the case where the “might jury motion to the under his novel in bar issue government appeal of the law, view so that successful In require the defendant. the immedi- retrying would Nelson ately following passage, Senator makes clear if pleaded special facts issue are not submitted jury, but tried to the there would be no bar judge, taking appeal. But in both Nel- cases, Senator obviously like son, Patterson, quite Senator giving views jeopardy” his what “constitutional means. replete While the debates are with other indications concern Congress’ was with “double jeopardy,” jeopardy,” “literal the clearest such indication occurs very exchange between Rayner, Senator who an- opposition nounced his any form, bill Cong. Spooner, Rec. and Patterson, Senators proponents of the bill. The exchange occupied Nelson — day days most second three of debate in the Senate centered almost entirely Rayner’s Senator proposed The example amendment. Ray- Senator ner to he used illustrate the difficulties saw in the bill was case in which a hypothetical plea bar —a limitations plea halfway through sustained the trial. See —-was In Cong. Rec. case, 2749. Senator Rayner say certainty no with one could argued, whether the de- put fendant had been and jeopardy, hence whether he constitutionally could if be retried the Government’s Rayner appeal were successful. Senator did not want to leave the depend defendant’s fate “this howling upon subject wilderness of confusion consti- what legal jeopardy.” tutes 41 Cong. (emphasis Rec. 2750 added). His amendment guaran- would thus have teed that a defendant could never be retried —whatever jeopardy” the ultimate resolution of the “legal question. opposed Those if who the amendment argued that it had any effect, it question any substantive would make the appeal “moot”; that it enough was make sure that the Government was not allowed to pro- secure a reversal and ceed again place where result would defendant jeopardy”; “double and that the bill would leave Supreme Court question of what “jeopardy,” hence protection “against invasion of the constitu- tional guaranty as to double jeopardy.” Cong. Rec. see also 41 2761-2763; Cong. Rec. But it 2193. again clear —indeed it was Rayner’s crucial Senator argument Senators that “jeopardy” assumed —that being used in the legal sense: question subjects “The is whether it a man under any aspect of it to danger jeopardy. of double “The [Rayner] Senator does not care says he whether it is double jeopardy or not. Even if a man may the Constitution properly put if lawfully be on trial he again, has been once, tried even were a though mistrial, if he had jeopardy, been for a moment he we insists that shall provide by law, no matter what the case may he not be tried he be, again; shall shall go acquit. argued.

“The matter has been I thoroughly am under the it, bill, content leave if it shall be- 344 Supreme Court of the United law,

come It determine what their function to States. protect jeopardy. the It is their function to against any United inva- citizens the States guaranty as sion of the constitutional to double jeopardy. rely upon I think can the court to we protect requires as all far as the Constitution it supplementing the defendants, without Constitu- by tion amendment to bill.” Senator's (remarks Cong. Spooner).11 Rec. 2762-2763 of Senator Rayner’s hypothetical plea example of a Senator bar example accepted begun after had sustained trial —an Patterson, Nelson, question by without Senators Rayner’s be did It should noted that even Senator amendment purport scope to narrow the cases in which Government only sought appeal; any jeopardy” could to remove "double by problem declaring defendant retain a favorable should decision, appeal. whatever result on day debate, agreed to,

On the third modi- the amendment was fied to read:

“Provided, upon appeal That if or writ of error it shall rulings during found that there error in of the court trial, a verdict favor of defendant not be aside.” shall set Cong. Rec. 2819. Rayner’s no opponents

Senator earlier continued to insist they change amendment, material had been made since as argued, any had there would be event no where favor, opinion had defendant received a see “verdict” his Justice, ante, securing p. 308, opposed a favorable Chief “judgment” by sustaining plea or the trial action in his court’s arresting judgment. Cong. explanation, See Rec. 2820. Without changed the Conference Committee the amendment to read: ' “Provided, no writ of shall allowed That error be taken United States in case where has been a verdict there favor of the defendant.”

Subsequent proviso Act amendments to the omitted the alto- (which gether longer version.) appears no in the current thus vindicating Rayner’s arguments opponents of Senator that the amendment had no effect. substantive every in the participating other Senator Spooner, majority’s assertion completely undercuts debate — no the Congress thought appeal that there could be once the jury impaneled. Indeed, been in the face of had the arguments “jeopardy” over of and Senator meaning Rayner’s term, of vigorous vagueness attack the that majority is of to nothing suggest it short incredible the intending in the it Congress language Act, that left that easily interpreted providing clear, to be as “'a admin- ante, test,” at If the Congress istered 307. had intended simple both majority’s interpretation it would have been appeals to “where the logical explicitly limit cases jury yet not been thus the impaneled,” avoiding has topic of possibility very confusion which had been the of days for three full discussion debate. plain majority’s post fact of the matter is simply hoc rationalization of the not Act was Congress. While the debates show considerable dis- about the in agreement “jeopardy” meaning legal sense, slightest anywhere there is not the in suggestion history in legislative “jeopardy” being used any other sense. Even where references occur to the jury as the moment impaneling jeopardy when jeopardy it is clear that still in attaches, being used sense—after legal all, majority notes, its as itself ante, jury of the impaneling does fact often constitutionally point become the relevant determin- ing jeopardy” prevent “legal has attached to reprosecution. point But the one on which there was from agreement unanimous Rayner, see, Senator —even g., 41 Cong. Rec. 2748—about meaning “jeop- e. ardy,” that where a was convicted defendant on his jury’s motion had secured the arrest of a own verdict of he had not been guilty, placed “jeopardy.” de- “[T]he complain, either if fendant could judgment upon court shall be entered the verdict or a new trial the defendant a giving because it is ordered, shall be under the trial that acquit when, new opportunity go Cong. 2753. he had been convicted.” Rec. had, placed hold has been Court that Sisson For this thus jeopardy provisions, the motion-in-bar must to hold jurisdiction, prepared Court be defeating Government, resulting that a successful on the would verdict, an order that entered jeopardy protection. Judge double violate Sisson’s Hand refused even to consider such a suggestion Learned in Zisblatt: as verdict of remains long guilty “So datum, the correction of errors law in attaching legal upon proper consequences to not trench [does] prohibition.” 2d, constitutional F. 743.

Ill I peculiar path find extremely that the Court in its conclusion that we cannot hear reaching follows provision “motion in is this case. The arrest” confined early sense, common-law there although its is abso- lutely Congress using phrase no indication was in never sense, similarly and we have limited the in scope. “motion bar” to its common-law The provision in any trouble with the “motion is alleged arrest” problem of but the fact jeopardy, Judge Wyzanski facts the face of relied on outside the “record.” Con- with versely, provision trouble the “motion in bar” is facts, solely not the use of outside but the fear that “put jeopardy.” If Sisson this were a motion “jeopardy” there be no arrest, problem; would if in bar, this were a motion resort to outside would facts pose problem. apparent inconsistency no The and the appear refusal to hear the case to be due to a dogged Wyzanski’s fit Judge determination to action into one “common-law United pigeonhole,” States v. Mersky, 361 J., concurring), S. or the other (Brennan, U. trying while the reason for paying scant attention to place, Judge make the fit in the first with the result that Wyzanski’s the no given distorting action is to less “acquittal.” label of question simply

The this case should be whether upholds or not judge who a claim constitutional thereby privilege, declaring statute unconstitutional applied, as has in- Congress entered Surely tended this Court to be able to review. ambiguous says statute as unclear and the majority as unhappy is, Act the “words” of the are statute place of interpretation. first to start task The interpretation primary guide to should be the statute’s purpose, by prompted indicated evil that it, history. legislative passed

The Act was remedy situation that gave a single judge power district defeat prosecution criminal instituted the Government, and unconstitutional, attempts by to annul as Congress to defendant’s specified reach a conduct through the use machinery. of the criminal over, Over and this theme repeated bill, the debates on the every dominating topic other of discussion except the concern for safe- guarding privilege defendant’s against jeop- double ardy. As opinion Justice’s details, Chief to imagine closely difficult a case more the fitting type of case which intended to Congress allow an appeal than the instant one. majority

The suggests we must remember that the Act was “a and compromise,” Congress was very unduly concerned about not encroaching on the rights “compromise” But defendant. the between the only House and the was over Senate the areas in complete which appeal to allow was accord that —there constitutional cases of this sort constituted one of those areas; they were indeed the Act’s raison d’etre. Simi- the protect de-

larly Congress concerned while rights those were doubt that rights, fendant’s it had no guilty, been found where a defendant had not invaded judge’s decision appealed Government could stand. reasons the verdict legal for policies pays lip service to majority, short, policies question ever those applying Act without Wyzanski, anxious Judge in the case before it. presented yet duty it, as he saw and aware that ultimate to do his properly belongs issue resolution of constitutional issue passing had two means of while Court, granted he could have protecting rights: still Sisson’s States see United pretrial hearing, after a Sisson’s motion Covington, Proc. 57, 60; v. S. Fed. Rules Crim. U. (b)(1), here, he the motion (b)(4), could, grant him to jury’s guilty after the forced reach verdict In none of question. case, the constitutional either in the jeopardy provisions interests reflected Con- repeated protecting defendants from and har- stitution — assing way trials the same offense—is en- In if are less dangered. fact, anything Sisson’s interests in jeopardy in the second case where the than the first delay Government’s would force long begin- ning trial itself.

The conclusion that intended Congress judgments this kind to be reviewed I clear, seems to me so suspect majority’s neglect aspect of this of the stat- ute amounts to policy purpose tacit admission that point jurisdiction. If overwhelmingly finding toward is case, that- hang then the technical Congress meaning of the obscure legal happened terms it to use not only but inappropriate, strangely out line leap plain with decisions that over the meaning in other contexts to reach words conclusions claimed purposes. to be consistent with Act’s broader See States, Welsh v. United 333 (1970); Boys 398 U. S. Markets, Union, Inc. v. Retail Clerks 398 U. S. 235 States, Toussie v. United (1970); 112 (1970); 397 U. S. Seeger, United States (1965). v. Compared U. S. 163 examples “statutory to some these construction,” it play really child’s conclude that Congress did not to limit mean “motion arrest” to old its common-law or that at if it meaning, did, least it thought decisions Wyzanski’s such as Judge would have been appealable under some other provision, such as the “motion in bar” as long as there was no danger encroaching on the jeopardy defendant’s interests.

Admittedly, the issues raised are Sisson difficult and far-reaching ones, they but should faced and decided. sure, It to be is, much more comfortable to be able to control the decision whether or not hear a difficult issue the use of our discretion to grant certiorari. But is no ignoring excuse for Con- gress’ clear intent the Court was to have no choice whether deciding to hear the issue a case such expressed this. The fear in the opinion prevailing if accept jurisdiction we we shall be “cast adrift” ante, to flounder helplessly, see has flavor nothing so much long-discarded as the philosophy that inspired the old forms action and that led to the solemn admonition in 1725 up keep must “[w]e the boundaries of actions, otherwise we shall introduce Reynolds Clarke, utmost confusion.” v. Eng. Rep. 747, (K. 1725). I B. I cannot agree. would find jurisdiction. Notes show that amendment not meant to coverage, 304, Rep. Cong., Sess., A177; the Act’s H. R. No. 80th 1st Distributing Co., Apex see United 747, States v. 270 2d F. 755 (C. 1959). A. 9th Cir. jurisdiction 1942 A did amendment increase this Court’s by including involving Act cases informations as well indict- ments, (1) 56 Stat. 271. have review Other amendments abolished right 45 appeal, writ error substituted Stat. (1928); (2) given appeals jurisdiction appeals for the courts of categories originally from in the decisions same common-law as those validity provided, which but do not involve the construction statute, underlying 271. Stat. Attorney Reports 1892, pp. See General’s Annual for xxiv-xxv; 1893, p. xxvi; 1894, xxix; 1899, 33; p. p. for for for 1900, 40; p. 1903, p. vi; for 1905, p. 10; 1906, for for p. 4. generally Kurland, Mersky See Appeals Case and the Criminal Suggestion A Statute, Act: for Amendment of the 28 U. Chi. L. Rev. (1961); Landis, 446-449 F. Frankfurter & J. The Business of Supreme (1928). 114-117 Court Atty. Rep. xxiv. Gen.

Case Details

Case Name: United States v. Sisson

Court Name: Supreme Court of the United States

Date Published: Jun 29, 1970

Citation: 399 U.S. 267

Docket Number: 305

Court Abbreviation: SCOTUS