420 U.S. 377 (1975), 73-1424, Serfass v. United States

Docket Nº:No. 73-1424
Citation:420 U.S. 377, 95 S.Ct. 1055, 43 L.Ed.2d 265
Party Name:Serfass v. United States
Case Date:March 03, 1975
Court:United States Supreme Court
 
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Page 377

420 U.S. 377 (1975)

95 S.Ct. 1055, 43 L.Ed.2d 265

Serfass

v.

United States

No. 73-1424

United States Supreme Court

March 3, 1975

Argued December 9, 1974

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Syllabus

Petitioner, who had submitted a post-induction order claim for conscientious objector status to his local board, was later indicted for willful failure to report for and submit to induction into the Armed Forces. He filed a pretrial motion, accompanied by an affidavit, to dismiss the indictment on the ground that the local board did not state adequate reasons for refusing to reopen his file, and a motion to postpone the trial

for the reason that a Motion to Dismiss has been simultaneously filed, and the expeditious administration of justice will be served best by considering the Motion prior to trial.

The District Court dismissed the indictment, noting that the material facts were derived from the affidavit, petitioner's Selective Service file, and a stipulation that the information petitioner had submitted to the board "establishes a prima facie claim for conscientious objector status based upon late crystallization." The court held that dismissal of the indictment was appropriate because petitioner was entitled to full consideration of his claim before he was assigned to combatant training and because the local board's statement of reasons for its refusal to reopen petitioner's file was "sufficiently ambiguous to be reasonably construed as a rejection on the merits, thereby prejudicing his right to in service review." The Government appealed under 18 U.S.C. § 3731. The Court of Appeals, rejecting petitioner's contention that it lacked jurisdiction under § 3731 because the Double Jeopardy Clause barred further prosecution, reversed.

Held: The Double Jeopardy Clause does not bar an appeal by the United States under 18 U.S.C. § 3731 from a pretrial order dismissing an indictment since, in that situation, the criminal defendant has not been "put to trial before the trier of the facts, whether the trier be a jury or a judge." United States v. Jorn, 400 U.S. 470, 479. Pp. 383-394.

(a) In light of the language of the present version of § 3731 and of its legislative history, it is clear that Congress intended to authorize an appeal to a court of appeals so long as further prosecution would not be barred by the Double Jeopardy Clause. Pp. 383-387.

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(b) The concept of "attachment of jeopardy" defines a point in criminal proceedings at which the purposes and policies of the Double Jeopardy Clause are implicated. Jeopardy does not attach until a defendant is put to trial, which, in a jury trial, occurs when the jury is empaneled and sworn, and, in a nonjury trial, when the court begins to hear evidence. P. 388.

(c) Jeopardy had not attached in this case when the District Court dismissed the indictment, because petitioner had not then been put to trial. There had been no waiver of a jury trial; the court had no power to determine petitioner's guilt or innocence; and petitioner's motion was premised on the belief that its consideration before trial would serve the "expeditious administration of justice." P. 389.

(d) The principle that jeopardy does not attach until a defendant is put to trial before the trier of facts is no mere technicality or mechanical rule, and petitioner's contention that the District Court's dismissal of the indictment was the "functional equivalent of an acquittal on the merits" is without substance, as the word "acquittal" has no significance unless jeopardy has attached. United States v. Sisson, 399 U.S. 267; United States v. Brewster, 408 U.S. 501, distinguished. Pp. 389-393.

492 F.2d 388, affirmed.

BURGER, C.J., delivered the opinion of the Court, in which BRENNAN, STEWART, WHITE, MARSHALL, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. DOUGLAS, J., filed a dissenting statement, post, p. 394.

BURGER, J., lead opinion

MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.

We granted certiorari to decide whether a Court of Appeals has jurisdiction of an appeal by the United

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States from a pretrial order dismissing an indictment based on a legal ruling made by the District Court after an examination of records and an affidavit setting forth evidence to be adduced at trial.

I

The material facts are not in dispute. Petitioner, whose military service had been deferred for two years while he was in the Peace Corps, was ordered to report for induction on January 18, 1971. On December 29, 1970, he requested the form for conscientious objectors, Selective Service Form 150, and, after submitting the completed form to his local board, he requested an interview. Petitioner met with the local board on January 13, 1971, and thereafter he was informed by letter that it had considered his entire Selective Service file, had "unanimously agreed that there was no change over which [petitioner] had no control," and had therefore "decided not to re-open [petitioner's] file." He was also informed that he was "still under Orders to report for Induction on January 18, 1971, at 5:15 A.M." Petitioner appeared at the examining station and refused induction on January 18.

A grand jury returned an indictment charging petitioner with willfully failing to report for and submit to induction into the Armed Forces, in violation of 50 U.S.C.App. § 462(a). At petitioner's arraignment, he pleaded not guilty and demanded a jury trial. The trial date was set for January 9, 1973. Prior to that time, petitioner filed a motion to dismiss the indictment on the ground that the local board did not state adequate reasons for its refusal to reopen his file. Attached to the motion was an affidavit of petitioner stating merely that he had applied for conscientious objector status and that the local board's letter was the only communication concerning his claim which he had received. At the

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same time, petitioner moved

to postpone the trial of the within matter which is now scheduled for January 9, 1973, for the reason that a Motion to Dismiss has been simultaneously filed and the expeditious administration of justice will be served best by considering the Motion prior to trial.

On January 5, the District Court granted petitioner's motion to continue the trial and set a date for oral argument on the motion to dismiss the indictment. Briefs were submitted, and after hearing oral argument, the District Court entered an order directing the parties to submit a copy of petitioner's Selective Service file. On July 16, 1973, it ordered that the indictment be dismissed. I n its memorandum, the court noted that the material facts were derived from petitioner's affidavit, from his Selective Service file, and from the oral stipulation of counsel at the argument

that the information which Serfass submitted to the Board establishes a prima facie claim for conscientious objector status based upon late crystallization.1

The District Court held that dismissal of the indictment was appropriate because petitioner was "entitled to full consideration of his claim prior to assignment to combatant training and service," and because the local board's statement of reasons for refusing to reopen his Selective Service file was

sufficiently ambiguous to be

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reasonably construed as a rejection on the merits, thereby prejudicing his right to in service review.2

The United States appealed to the United States Court of Appeals for the Third Circuit, asserting jurisdiction under the Criminal Appeals Act, 18 U.S.C. § 3731, as amended by the Omnibus Crime Control Act of 1970, 84 Stat. 1890.3 In a "Motion to Quash Appeal for Lack of Jurisdiction" and in his brief, petitioner contended that the Court of Appeals lacked jurisdiction because further prosecution was prohibited by the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution. The Court of Appeals rejected that contention. It concluded that, although no appeal would have been possible in this case under the Criminal Appeals Act as it existed prior to the 1970 amendments,4

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those amendments were

clearly intended to enlarge the Government's right to appeal to include all cases in which such an appeal would be constitutionally permissible.

Relying on its earlier opinion in United States v. Pecora, 484 F.2d 1289 (1973), the Court of Appeals held that, since petitioner had not waived his right to a jury trial,5 and no jury had been empaneled and sworn at the time the District Court ruled on his motion to dismiss the indictment, jeopardy had not attached and the dismissal was an appealable order. Pecora had held appealable, under the present version of § 3731, a pretrial dismissal of an indictment based on a stipulation of the facts upon which the indictment was based. In this case, the Court of Appeals saw "no significant constitutional difference" arising from the fact that

the instant dismissal was based upon the trial court's finding that the defendant had established a defense as a matter of law, rather than upon the finding, as in Pecora, that there were insufficient facts as a matter of law to support a conviction.

In both cases,

the pretrial motion of dismissal was based upon undisputed facts raising a legal issue and the defendant did not waive his right to a jury trial,

and, in both, "denial of the motion to dismiss [would have] entitled the defendant to the jury trial which he ha[d] not waived."6

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[95 S.Ct. 1060] As to the merits, the Court of Appeals concluded that, in Musser v. United States, 414 U.S. 31 (1973), this Court had "placed an abrupt end to [the] line of cases" on which the District Court relied. It held that Musser should be applied retroactively to registrants such as petitioner who refused induction before the case was decided, and that, since petitioner's local board was without...

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