United States v. Apex Distributing Company, 15701

• Decision Date: 21 September 1959
• Docket Number: 15702.,No. 15701,15701
• Citation: 270 F.2d 747
• Parties: UNITED STATES of America, Appellant, v. APEX DISTRIBUTING COMPANY, Inc., Albert A. Finer, and James E. Halstead, Appellees. UNITED STATES of America, Appellant, v. Albert A. FINER and John E. Moeller, Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

270 F.2d 747 (1959)

UNITED STATES of America, Appellant, v. APEX DISTRIBUTING COMPANY, Inc., Albert A. Finer, and James E. Halstead, Appellees.

UNITED STATES of America, Appellant, v. Albert A. FINER and John E. Moeller, Appellees.

Nos. 15701, 15702.

United States Court of Appeals Ninth Circuit.

September 21, 1959.

Charles P. Moriarty, U. S. Atty., Joseph C. McKinnon, Asst. U. S. Atty., Seattle, Wash., for appellant.

H. Sylvester Garvin, Seattle, Wash., for Apex Distributing Co., Inc., and Albert A. Finer.

Dodd & Russell, Gordon Dodd, Seattle, Wash., for James E. Halstead.

Houghton, Cluck, Coughlin & Henry, for John E. Moeller.

Before POPE, STEPHENS, FEE, CHAMBERS, BARNES, HAMLEY, HAMLIN, JERTBERG, Circuit Judges.

HAMLEY, Circuit Judge.

Prior to trial the district court entered orders dismissing these two criminal actions. The Government appealed. Defendants, asserting that this court is without jurisdiction, have moved to dismiss the appeals. These motions are the only matters now before us. For the reasons hereinafter stated, the motions to dismiss the appeals are granted.

All of the defendants were indicted under 18 U.S.C.A. §§ 201 and 202, for allegedly giving and taking bribes in connection with the purchase of naval supplies. All of the defendants except John E. Moeller were also indicted under 18 U.S.C.A. § 371, for assertedly engaging in a conspiracy to defraud the United States.

Defendants in both cases, purporting to invoke Rules 16 and 17(c), Federal Rules of Criminal Procedure, 18 U.S. C.A., moved for subpoenas duces tecum and orders requiring the United States to produce certain materials before trial. The materials demanded included all documents, books, papers, and objects obtained by Government counsel in any manner (a) in the course of the grand jury investigation and (b) in the course of the Government's preparation for the trial, if such materials were presented to the grand jury or were to be offered as evidence at the trial. Expressly excepted from the materials demanded, however, were "memoranda prepared by Government counsel and documents or papers solicited by or volunteered to Government counsel which consist of narrative statements of persons or memoranda of interviews."

After a hearing on these motions the trial court ruled that defendants were entitled to inspect the materials which had been requested by them, though it considered the request as "somewhat broader in scope" than that approved in Bowman Dairy Co. v. United States, 341 U.S. 214, 71 S.Ct. 675, 95 L.Ed. 879. The United States Attorney agreed to comply with this ruling.

Several days later, having read newspaper accounts of the decision in Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103, defendants filed amended discovery motions eliminating the exceptions stated in the first motions. A hearing was held on these amended motions, at which time the court expressed the view that the amended demands were too broad in scope. Defendants then filed second amended motions somewhat limiting their demands for additional materials. The court thereupon entered orders requiring the Government to produce, for pretrial inspection and copying, all statements or reports relevant to the issues which prospective Government witnesses had made to authorized Government personnel.

A few days later the United States Attorney advised the trial court by letter that the Attorney General had directed that the statements of prospective witnesses not be produced for pretrial examination. The reason given was that, in the view of the Attorney General, the Jencks decision requires only that the pretrial statements of witnesses actually testifying for the Government be supplied and does not require pretrial discovery.¹

Defendants then moved for orders dismissing the actions for the reason that the United States had failed and refused to comply with the described orders. A hearing was held on these motions. The court inquired as to whether the Government would comply with the orders to produce if amended to require production only of statements "which were the subject of a witness' testimony." The United States Attorney answered in the negative.

The court thereupon entered orders dismissing the actions with prejudice, and filed an opinion explaining its reasons for doing so. It is from these orders that the Government has appealed. As before stated, our present inquiry is as to the jurisdiction of this court to entertain these appeals.

Federal courts have appellate jurisdiction only to the extent conferred by statute. Carroll v. United States, 354 U.S. 394, 399, 77 S.Ct. 1332, 1 L.Ed.2d 1442. In criminal cases, except with regard to certain collateral matters not here involved,² the jurisdiction of federal courts to entertain appeals by the United States derives from the Criminal Appeals Act, 18 U.S.C.A. § 3731.³

The first four paragraphs of this section describe the kinds of decisions or judgments in criminal cases from which the United States may take a direct appeal to the Supreme Court. The fifth, sixth, and seventh paragraphs of the section describe the kinds of decisions or judgments in criminal cases from which the United States may appeal to a court of appeals. The two classes of decisions or judgments are mutually exclusive. Decisions or judgments of a kind not falling in either class are not appealable by the Government to any court.

The orders here sought to be reviewed purport to dismiss the actions "with prejudice." This suggests that possibly for that reason these orders ought to be regarded as "sustaining a motion in bar." If they should be so regarded, the United States could appeal only to the Supreme Court, and it would be our duty to certify the cases to that court. See § 3731, fourth and eleventh paragraphs.

In our view, however, the fact that these orders purport to dismiss the actions "with prejudice" is not alone sufficient to categorize them as orders sustaining motions in bar. The direction the Government's appeal must take, or whether it may appeal at all, is to be governed by the substantial basis of the orders sought to be reviewed rather than their designation and form.⁴

The reason the instant orders of dismissal were entered was that the Government had refused to obey a pretrial order for the production of papers and documents. Since this reason has nothing to do with the merits of the criminal actions, it was wholly inappropriate to dismiss them "with prejudice," however valid the orders may be in other respects.

Had the statute of limitations not barred new indictments,⁵ the Government could have reindicted appellees despite the words "with prejudice" added to these dismissal orders. If dismissal of the new indictments were then sought because of the "with prejudice" provision, it may be assumed that the court would deny the motions. This it could do by modifying the original orders so as to delete the words "with prejudice," or by holding that these words were surplusage.⁶ We accordingly hold that notwithstanding the words "with prejudice" used in the orders from which the Government here appeals, the orders are not subject to direct appeal to the Supreme Court as decisions or judgments sustaining motions in bar.⁷

Disregarding, therefore, the statutory exception in the case of a direct appeal to the Supreme Court, the question before us is whether these appeals are "from a decision or judgment setting aside, or dismissing any indictment * * *" as those words are used in the sixth paragraph of § 3731. If so, we have jurisdiction to entertain them; otherwise not.

While appellees do not raise the point, the orders here in question are not in terms orders "setting aside, or dismissing any indictment." They make no reference to the indictments, but each recites that "the above-entitled action be, and the same is hereby, dismissed * *."

We think that no point can here be made of the fact that the orders sought to be reviewed do not, in express terms, set aside or dismiss the indictments. Here again we are to look at substance rather than form in applying the Criminal Appeals Act. The dismissal of a criminal action inescapably sets aside or dismisses the indictment or information on which it is based.

But while status as decisions or judgments "setting aside, or dismissing" indictments within the meaning of § 3731 is not to be denied these orders because of their failure to employ those exact words, this by no means ends our inquiry. The interaction of two principles of statutory construction to which reference will now be made may require that § 3731 be given a more restricted scope than would seem to be indicated by the actual statutory language.

One of these principles is that a jurisdictional statute such as this is to be interpreted in the light of its legislative history whether or not the statutory language is ambiguous.⁸ The other is that the Criminal Appeals Act is to be strictly construed, for appeals by the Government in criminal cases "are something unusual, exceptional, not favored." Carroll v. United States, supra, 354 U.S. at page 400, 77 S.Ct. at page 1336.⁹

An understanding of the true significance of the legislative history of § 3731, enacted in 1948, requires that we first review the development of the concept of Government appeals in criminal cases up to that time. The Criminal Appeals Act, giving the United States a right of appeal in criminal cases, was first enacted in 1907. 34 Stat. 1246. Under that act the United States could appeal directly to the Supreme Court, but only with respect to certain kinds of decisions or judgments.¹⁰

It will be noted that under the 1907 act there was no appeal from decisions or judgments responsive to pleas in abatement, as distinguished from motions to quash or set aside, or demurrers. Nor was there any appeal where the decision or judgment involved an information as distinguished from an indictment. Moreover, unless...