United States v. Findley, 7765.

• Decision Date: 22 March 1971
• Docket Number: No. 7765.,7765.
• Citation: 439 F.2d 970
• Court: U.S. Court of Appeals — First Circuit
• Parties: UNITED STATES of America, Appellant, v. Michael Stephen FINDLEY, Defendant, Appellee.

439 F.2d 970 (1971)

UNITED STATES of America, Appellant, v. Michael Stephen FINDLEY, Defendant, Appellee.

No. 7765.

United States Court of Appeals, First Circuit.

March 22, 1971.

William B. Cullimore, Asst. U. S. Atty., with whom David A. Brock, U. S. Atty., was on brief, for appellant.

Gerald R. Prunier, Nashua, N. H., with whom Leonard, Leonard, Prolman & Prunier, Nashua, N. H., was on brief, for appellee.

Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.

ALDRICH, Chief Judge.

This is an appeal by the government from the dismissal of an indictment. The facts are these. Defendant, classified I-A by his local Selective Service Board, was ordered to report for induction on June 24, 1969. After receipt of this notification, he requested SSS Form 150, seeking a conscientious objector classification, which he completed and returned to the Board on June 2. The Board thereafter wrote him as follows.

"This letter is to advise that your case was considered by the Board at a meeting held June 24, 1969. The Board did not reopen your classification."

Apparently defendant's induction date was postponed to August 26. On that date he reported, but refused to submit.

To the customary indictment under 50 U.S.C. App. § 462, the defendant filed a motion to dismiss on the ground that "no reasons were given" by the Board for the refusal to reopen his classification, citing the court's previous decision in United States v. Cassarino, D.N.H., 1970, 314 F.Supp. 813, that such failure means that the government has not proved its case beyond a reasonable doubt. At the hearing on the motion the government stipulated, at the defendant's request, that like Cassarino this was a post-order-to-report case, and that the Board had given no reason for its refusal to reopen. The court inquired whether defendant's Form 150 "set out facts which established a prima facie case for conscientious objector classification?" Upon defendant's statement that this matter was not relevant so far as his motion was concerned, the court in agreement, withdrew its inquiry, and the form was not introduced.¹ The court thereupon granted the motion on the basis of its Cassarino opinion.

The government asserts that this order is appealable by it, under 18 U.S.C. § 3731. That matter not appearing as obvious to us, we requested a brief with particular reference to United States v. Sisson, 1970, 399 U.S. 267, 90 S.Ct. 2117, 26 L.Ed.2d 608. The government responded with a scholarly memorandum discussing earlier cases, but which, unfortunately, stopped short of what we had in mind with regard to Sisson. Its entire memorandum was devoted to showing why an appeal did not lie to the Supreme Court. With this we quite agree. See United States v. Weller, 401 U.S. 254, 91 S.Ct. 602, 28 L.Ed.2d 26 (2/24/71), post. Our difficulty is that although labelled a motion to dismiss, under the rationale of Sisson the court's action was in reality an acquittal, or, more precisely, a summary judgment on the merits not appealable anywhere under section 3731.

Section 3731, in relaxing the normal principle that the government has no appeal in criminal cases, is of limited scope. SeeSisson, ante, 399 U. S. at pp. 291-296, 90 S.Ct. 2117, 26 L. Ed.2d 608; Carroll v. United States, 1957, 354 U.S. 394, 400-403, 77 S.Ct. 1332, 1 L.Ed.2d 1442; United States v. Apex Distributing Co., 9 Cir., 1959, 270 F.2d 747. The only possibly pertinent part of section 3731 is paragraph 6, authorizing appeal to this court,

"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 of the United States is provided by this section."

Quite obviously this does not mean every dismissal. See, e. g., United States v. Apex Distributing Co., ante (no appeal from dismissal for "unnecessary delay" due to government's unwillingness to comply with discovery order); Umbriaco v. United States, 9 Cir., 1958, 258 F. 2d 625 (conviction set aside for insufficiency of the evidence is a directed acquittal, from which no appeal lies); United States v. Nardolillo, 1 Cir., 1958, 252 F.2d 755 (no appeal from dismissal, after guilty verdict, due to government's refusal to comply with discovery order in connection with motions for acquittal and new trial); United States v. Pack, 3 Cir., 1957, 247 F.2d 168, reaffirming United States v. Janitz, 3 Cir., 1947, 161 F.2d 19. Apex, after careful and complete analysis of the legislative history of the relevant paragraph of section 3731, concluded that it authorized appeals only from those dismissals based upon defects in the indictment or information, or in the institution of the prosecution. United States v. Apex Distributing Co., ante, at 755. Cf. United States v. Tane, 2 Cir., 1964, 329 F.2d 848 (allowing appeal from pretrial dismissal based on finding indictment the product of an illegal wiretap). We believe this limitation properly reflects the statutory purpose, at least to this extent: that if a dismissal is a result of the showing of evidentiary facts dehors the indictment which, if established at a trial, would constitute a defense on the merits, the court's ruling, however described, seeSisson, ante, 399 U.S. at 290, 90 S.Ct. 2117, 26 L.Ed.2d 608, is in effect an acquittal, see id. at 288-290, 90 S.Ct. 2117, 26 L.Ed.2d 608 & n. 19, 301, 90 S.Ct. 2117, 26 L.Ed.2d 608, and thus not within the intended purpose of the appeals statute. Findley, like Sisson, did present a defense on the merits (the invalidity of the induction order due to improper classification), based on such independent facts.

There can be no question, then, that, had he waited and proved these facts at trial defendant would, assuming the court's view of the law is correct, have been entitled to an acquittal from which, under Sisson, no appeal would lie.

Admittedly Findley, unlike Sisson, had not formally been put in jeopardy. It is also true that the parties stipulated to the additional facts in question. But the Court's reasoning in Sisson supports our further conclusion that Findley should be treated as he would have been had he raised his defense only at trial. First, see Sisson, ante, at 284-286, 90 S.Ct. 2117, 26 L.Ed.2d 608 (if decision on external facts is unappealable, how facts arrived at is irrelevant) (dictum). Second, and more important, Justice Harlan's opinion went beyond reliance on the fact that there had been a trial: Sisson's defense was not part of the "general issue" merely because it had come up at the trial; rather, such a defense is "necessarily" part of the general issue. Sisson, ante, at 301, 90 S.Ct. 2117, 26 L.Ed.2d 608. The Court, furthermore, was willing to support its conclusions by an observation that Sisson's situation was equivalent to a jury acquittal based upon an instruction as to a legal principle. Id. at 289, 90 S.Ct. 2117, 26 L.Ed.2d 608. Collectively we believe this was an approach not in terms of double jeopardy, but in terms of the kind of error section 3731 was intended to cover.

Immediately following our tentative conclusion on this matter the Court decided the case of United...