399 U.S. 267 (1970), 305, United States v. Sisson

Docket Nº:No. 305
Citation:399 U.S. 267, 90 S.Ct. 2117, 26 L.Ed.2d 608
Party Name:United States v. Sisson
Case Date:June 29, 1970
Court:United States Supreme Court

Page 267

399 U.S. 267 (1970)

90 S.Ct. 2117, 26 L.Ed.2d 608

United States



No. 305

United States Supreme Court

June 29, 1970

Argued January 20-21, 1970




Appellee was indicted for willfully failing to report for induction as ordered by his local draft board. He moved to dismiss the indictment because (1) the involvement in Vietnam violated international law, (2) he "reasonably believed the government's involvement in Vietnam to be illegal," (3) the Selective Service Act and its regulations were unconstitutional, as the local boards' procedures lacked due process, and (4) compulsory conscription in peacetime was unnecessary, and stifled fundamental liberties. The District Judge dismissed the motion, and the case proceeded to trial. The instructions to the jury made no reference to a conscientious objector claim, or to whether the appellee was "sincere" in his beliefs, but advised the jury that the crux of the case was whether appellee's refusal was "unlawful, knowingly, and willfully" done. The jury returned a verdict of guilty. Thereafter, appellee made a motion under Fed.Rule Crim.Proc. 34 to arrest the judgment on the ground that the District Court lacked jurisdiction. The District Court, in granting what it termed a motion in arrest of judgment, ruled not on the jurisdictional contention, but on appellee's "older contention" that the indictment could not charge an offense based on the Establishment, Free Exercise, and Due Process Clause arguments relating to conscientious objections to the Vietnam conflict. The court stated the facts of the case and described how appellee's demeanor on the stand convinced the judge of his sincerity. The court held that the Free Exercise and Due Process Clauses prohibited application of the Draft Act to appellee to require him to fight in Vietnam because, as a "sincerely conscientious man," his interest in not killing in Vietnam outweighed "the country's present need for him to be so employed." The court also ruled that § 6(j) of the Selective Service Act violates the Establishment Clause. The Government bases its claim that this Court has jurisdiction to review the case on the "arresting judgment" provision of 18 U.S.C. § 3731, which provides that an appeal may be taken to the Supreme Court from a decision (1) arresting a judgment of conviction, (2) for insufficiency of the indictment or information, (3) where such decision

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is based upon the invalidity or construction of the statute upon which the indictment or information is founded.


1. The decision below was not one "arresting a judgment of conviction." Pp. 280-287.

(a) In granting a motion in arrest of judgment under Fed.Rule Crim.Proc. 34, which preserves the common law requirement, a district court must not look beyond the face of the record, and thus a decision based on evidence adduced at trial cannot be one arresting judgment. Pp. 280-282.

(b) The District Court clearly went beyond the "face of the record" in reaching its decision, as the court's factual findings concerning appellee's sincerity and opposition to fighting in Vietnam are essential to its disposition of the case. Pp. 283-284.

(c) Even assuming, arguendo, that the parties could secure review under the "motion in arrest" provisions of § 3731 on the basis of a stipulation, there certainly was no formal stipulation here, and the most that can be said is that, after the lower court's decision, the Government chose to accept the opinion's findings of fact. Pp. 284-287.

2. The indictment here was not insufficient, as it recited the necessary elements of an offense, and did not allege facts that themselves demonstrate the availability of a constitutional privilege. Pp. 287-288.

3. Since the disposition below was based on factual conclusions not found in the indictment, but resulting from evidence adduced at trial, the decision was, in fact, an acquittal rendered after the jury's verdict of guilty, and not, as characterized by the trial judge, an arrest of judgment. Pp. 288-290.

4. The legislative history of the Criminal Appeals Act, rather than manifesting a broad congressional directive to this Court to review important legal issues, shows a legislative policy to provide review in only certain cases and to restrict it to those instances. A primary concern of the Act is that no appeal be taken by the Government from an acquittal, no matter how erroneous the underlying legal theory. Pp. 291-299.

5. This Court does not have jurisdiction in this case under the "motion in bar" provision of § 3731. Pp. 299-307.

(a) A motion in bar cannot be granted on the basis of facts that would necessarily be tried with the general issue in the case, and, here, the District Judge based his findings on evidence presented in the trial of the general issue. Pp. 301-302.

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(b) An appeal from a motion in bar cannot be granted after jeopardy attaches, and, in light of the compromise origins of the Criminal Appeals Act, the concern of some Senators over retrial of a defendant whose trial ended after the jury was impaneled, and the long-time consistent interpretation by the Government, jeopardy attaches when the jury is sworn. Pp. 302-307.

297 F.Supp. 902, dismissed.

HARLAN, J., lead opinion

MR. JUSTICE HARLAN delivered the opinion of the Court. *

The Government seeks to appeal to this Court a decision by a District Court in Massachusetts holding that appellee Sisson could not be criminally convicted for refusing induction into the Armed Forces. The District Court's opinion was bottomed on what that court understood

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to be Sisson's rights of conscience as a nonreligious objector to the Vietnam war, but not wars in general, under the Free Exercise and Establishment Clauses of the First Amendment and the Due Process Clause of the Fifth Amendment to the Constitution of the United States. The District Court's primary conclusion, reached after a full trial, was that the Constitution prohibited "the application of the 1967 draft act to Sisson to require him to render combat service in Vietnam" because, as a "sincerely conscientious man," Sisson's interest in not killing in the Vietnam conflict outweighed "the country's present need for him to be so employed," 297 F.Supp. 902, 910 (1969).

The District Court characterized its own decision as an arrest of judgment, and the Government seeks review here pursuant to the "arresting judgment" provision of the Criminal Appeals Act, 18 U.S.C. § 3731, an Act that narrowly limits the Government's right to appeal in criminal cases to certain types of decisions. On October 13, 1969, this Court entered an order postponing further consideration of the question of jurisdiction to the hearing of the case on the merits, 396 U.S. 812 (1969). For reasons that we elaborate in what follows, we conclude that the decision below, depending as it does on facts developed at Sisson's trial, is not an arrest of judgment, but, instead, is a directed acquittal. As such, it is not a decision that the Government [90 S.Ct. 2120] can appeal. Consequently, this appeal must be dismissed for lack of jurisdiction without our considering the merits of this case. We, of course, intimate no view concerning the correctness of the legal theory by which the District Court evaluated the facts developed at the trial.1

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As a predicate for our conclusion that we have no jurisdiction to entertain the Government's appeal, a full statement of the proceedings below is desirable.


A single-count indictment charged that Sisson "did unlawfully, knowingly and willfully fail and neglect and refuse to perform a duty" imposed by the Military Selective Service Act of 1967 and its regulations, in violation of § 12 of the Act, 81 Stat. 105, 50 U.S.C.App. 462(a) (1964 ed., Supp. IV), because he failed to obey an order by his local draft board to submit to induction.

Prior to trial, Sisson' attorney moved to dismiss the indictment on three grounds. It was claimed that Sisson's refusal to submit to induction was justified first, because "the government's military involvement in Vietnam violates international law"; and, second, because Sisson "reasonably believed the government's military involvement in Vietnam to be illegal." As a third ground, Sisson claimed that the Selective Service Act and its regulations were unconstitutional (a) because the procedures followed by local boards lacked due process, and (b) because compulsory conscription during peacetime was unnecessary, and stifled fundamental personal liberties. In support of the motion to dismiss, appellee stated:

At the time I refused to submit to induction into the armed forces, I believed, as I believe today, that the United States military involvement in Vietnam is illegal under international law as well as under the Constitution and treaties of the United States. I believed then, and still believe, that my participation in that war would violate the spirit and the letter of the Nuremberg Charter. On the basis of my knowledge of that war, I could not participate in it without doing violence to the dictates of my conscience.

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At the hearing on appellee's motion to dismiss, the District Judge said that he had "an open mind" concerning appellee's first and third grounds. However, the court said there was "nothing to" the second ground, noting that what

the defendant reasonably believes . . . cannot be raised in the way that you propose . . . , because that does not appear on the face of the indictment.

(App. 49.) The District Court later amplified this conclusion by saying:

Point 2 is plainly premature, because nobody can test the issue as to whether defendant reasonably believes the government's military involvement in Vietnam is illegal without knowing what he reasonably believed, and what he believed is a question of...

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