492 F.2d 388 (3rd Cir. 1974), 73-1736, United States v. Serfass

Docket Nº:73-1736.
Citation:492 F.2d 388
Party Name:UNITED STATES of America, Appellant, v. David Emery SERFASS.
Case Date:February 20, 1974
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

Page 388

492 F.2d 388 (3rd Cir. 1974)

UNITED STATES of America, Appellant,


David Emery SERFASS.

No. 73-1736.

United States Court of Appeals, Third Circuit.

February 20, 1974

James W. Walker, Asst. U.S. Atty., Scranton, Pa., for appellant.

Harry A. Dower, Boyd G. Hixson, Dower, Mackson, Hauff & Hettinger, Allentown, Pa., for appellee.

Before VAN DUSEN, ALDISERT and ROSENN, Circuit Judges.


ROSENN, Circuit Judge.

This appeal is hopefully one of the last of a long series of selective service cases involving the issue of whether an order to report for induction was invalid for failure of the local board to reopen the registrant's classification pursuant to a post-induction order request for conscientious objector status. Since the district court of the Middle District of Pennsylvania dismissed the indictment, the defendant also raises on appeal the issue of double jeopardy. Because we find the order of dismissal is appealable, and the dismissal was improper in light of the subsequent decision in Musser v. United States, 414 U.S. 31, 94 S.Ct. 196, 38 L.Ed.2d 190 (1973), we reverse.

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The facts of this case are not in dispute. On November 16, 1970, Serfass was ordered by his local board to report for induction on December 1. He appeared on December 1 and requested a delay in his induction in order that he could submit additional medical evidence. The delay was granted, but on December 18 he was again ordered to report for induction, this time on January 18, 1971. On December 19, he visited his local board and requested the form for conscientious objector application, SSS-150. His form 150 was returned to the local board on January 8, and on January 13 he received a courtesy interview as he had requested. By letter dated January 14, the board notified him that it had considered his entire file and 'unanimously agreed that there was no change over which you had no control and decided not to re-open your file.' The board also informed him that he was still obligated to report for induction on January 18. No other reasons for the refusal to reopen his file were given. On January 18, Serfass appeared at the examining station and refused induction. This prosecution followed under 50 App. U.S.C. § 462.

Before trial, Serfass moved for dismissal of the indictment on the ground that the local board had denied him due process by inadequately setting forth its reasons for denying his request to reopen his classification and to grant him conscientious objector status. The district court granted this motion, relying on defendant's selective service file, his affidavit in support of his motion which set forth that he had applied for conscientious objector status and had received from his local board only the January 14 letter denying his claim, and a stipulation of counsel that the information he sent to the board set forth a prima facie conscientious objector claim based upon late crystallization of beliefs.

On the basis of the law prevailing in this Circuit at that time, the district court stated in its opinion:

The enumerated facts indicate clearly that Serfass is entitled to full consideration of his claim prior to assignment to combatant training and service. Ehlert v. United States, 1971, 402 U.S. 99, 103-104 & n. 7, 107, 91 S.Ct. 1319, 28 L.Ed.2d 625. Therefore, since the statement of reasons given for refusing to reopen is sufficiently ambiguous to be reasonably construed as a rejection on the merits, thereby prejudicing his right to inservice review, defendant's motion to dismiss the indictment will be granted. (Footnotes omitted.)

The footnotes indicate that the court relied primarily upon United States v. Ziskowski, 456 F.2d 480 (3d Cir. 1972), and United States v. Folino, No. 72-1974 (3d Cir. June 29, 1973).


We first consider defendant's contention that we have no jurisdiction to hear this Government appeal from the district court's dismissal of the indictment. Resolution of this contention turns upon our construction of the Criminal Appeals Act, 18 U.S.C. § 3731, which reads:

In a criminal case an appeal by the United States shall lie to a court of appeals from a decision, judgment, or order of a district court dismissing an indictment or information as to any one or more counts, except that no appeal shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution.

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

This version of the Act is applicable to all actions begun in any district court after January 2, 1971 (84 Stat. 1890, 1893) and therefore applies to the present action.

Actions brought prior to January 2, 1971, were governed by an earlier version

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of the Criminal Appeals Act, the relevant portion of which made a criminal case appealable by the United States to the court of appeals:

from a decision or judgment setting aside, or dismissing any indictment or information, or any count thereof, except where a direct appeal to the Supreme Court is provided by this section.

See United States v. Pack, 247 F.2d 168 (3d Cir. 1957).

Under this former version of the Act it is clear that no appeal by the United States would lie in the instant case. Appeals were permissible only if the dismissal of an indictment was based upon a defect in the indictment or in the institution of the prosecution, rather than upon evidentiary facts outside the face of the indictment which would possibly constitute a defense at trial. See, e.g., United States v. Ponto, 454 F.2d 657, 663 (7th Cir. 1971) (en banc); United States v. Findley, 439 F.2d 970 (1st Cir. 1971).

The 1971 amendment to § 3731, however, was clearly intended to enlarge the Government's right to appeal to include all cases in which such an appeal would be constitutionally permissible. Cases decided under the prior version of § 3731 are of little aid in determining appealability under the present version. See United States v. Pecora, 484 F.2d 1289 (3d Cir. 1973).

In Pecora, we held appealable under the present version of § 3731 the district court's pretrial dismissal of an indictment based upon a stipulation of the facts upon which the indictment was returned.

In discussing the appealability of the pretrial dismissal, we indicated that absent the defendant's waiver of his right to a jury trial pursuant to Rule 23(a) of the Federal Rules of Criminal Procedure, jeopardy does not attach until the jury has been impaneled and sworn. We held that entering into the stipulation of facts 'for the purpose only of attacking the validity of the indictment did not constitute the waiver necessary under Rule 23(a).' Therefore, we concluded, since jeopardy had not attached at the time of the pretrial dismissal of the indictment, the Government could appeal the dismissal. United States v. Pecora, 484 F.2d at 1292-1293. We also rejected as inconsistent with § 3731 the contention that our holding would discourage defense counsel from expediting procedure by making pretrial motions for dismissal, and instead encourage counsel to wait until the jury was sworn before making motions for dismissal. 484 F.2d at 1289. See Fed.R.Crim.Proc. 12(b).

We believe the instant appeal is squarely controlled by United States v. Pecora, supra. As in Pecora, the pretrial motion of...

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