United States v. Jenkins 8212 1513

Decision Date25 February 1975
Docket NumberNo. 73,73
Citation95 S.Ct. 1006,43 L.Ed.2d 250,420 U.S. 358
PartiesUNITED STATES, Petitioner, v. Ronald S. JENKINS. —1513
CourtU.S. Supreme Court

Syllobus

After respondent was ordered to report for induction, his local draft board refused to postpone his induction to allow him to claim a conscientious objector classification, and he was subsequently indicted for refusing and failing to report for induction. Following a bench trial the District Court 'dismissed' the indictment and 'discharged' respondent, holding that, although under Ehlert v. United States, 402 U.S. 99, 91 S.Ct. 1319, 28 L.Ed.2d 625, the board was not required to entertain conscientious objector claims arising between notice of induction and the scheduled induction date, nevertheless, since respondent failed to report at a time when Ehlert had not yet been decided and when the prevailing law of the Circuit required a local board to reopen a registrant's classification if his conscientious objector views ripened only after he had been notified to report for induction, respondent was entitled to a postponement of induction until the board considered his conscientious objector claim, and that it would be unfair to apply Ehlert to respondent. The Court of Appeals dismissed the Government's appeal under 18 U.S.C. § 3731 on the ground that it was barred by the Double Jeopardy Clause, concluding that although the District Court had characterized its action as a dismissal of the indictment, respondent had in effect been acquitted, since the District Court had relied upon facts developed at trial and had concluded 'that the statute should not be applied to (respondent) as a matter of fact.' Held: Although it is not clear whether or not the District Court's judgment discharging respondent was a resolution of the factual issues against the Government, it suffices for double jeopardy purposes, and therefore for determining appealability under 18 U.S.C. § 3731, that further proceedings of some sort, devoted to resolving factual issues going to the elements of the offense charged and resulting in supplemental findings, would have been required upon reversal and remand. The trial, which could have resulted in a conviction, has long since terminated in respondent's favor, and to subject him to any further proceedings, even if the District Court were to receive no additional evidence, would violate the Double Jeopardy Clause. Pp. 365-370.

490 F.2d 868, affirmed.

Andrew L. Frey, Washington, D.C., for petitioner.

James S. Carroll, New York City, for respondent.

Mr. Justice REHNQUIST delivered the opinion of the Court.

Respondent Jenkins was indicted and charged with violating § 12(a) of the Military Selective Service Act, 62 Stat. 622, as amended, 50 U.S.C.App. § 462(a), for 'knowingly refusing and failing to submit to induction into the armed forces of the United States.' App. 3. After a bench trial, the District Court 'dismissed' the indictment and 'discharged' the respondent. 349 F.Supp. 1068, 1073 (EDNY 1972). The Government sought to appeal this ruling pursuant to 18 U.S.C. § 3731,1 but the Court of Appeals for the Second Circuit dismissed the appeal 'for lack of jurisdiction on the ground that the Double Jeopardy clause prohibits further prosecution.' 490 F.2d 868, 880 (1973). We granted certiorari in this case and United States v. Wilson, 420 U.S. 332, 95 S.Ct. 1013, 43 L.Ed.2d 232 (1975), also decided today, to consider the application of the Double Jeopardy Clause of the Fifth Amendment to Government appeals in criminal cases. 417 U.S. 908, 94 S.Ct. 2603, 41 L.Ed.2d 211 (1974).

I

Respondent, who had first registered with his local draft board in 1966, was classified 1—A by his local board on November 18, 1970. He was found physically fit for induction, and on February 4, 1971, the local board sent respondent an Order to Report for Induction on February 24, 1971. After consulting an attorney and a local draft counselor, respondent wrote the local board and requested Selective Service Form 150 for a conscientious objector classification. Having received no response from the local board by February 23, the day before he had been ordered to report for induction, respondent went in person to the local board to request Form 150. Although respondent did secure the desired form, local board officials were directed by Selective Service headquarters not to postpone his induction to allow him to complete and submit the conscientious objector form. Respondent did not report for induction on February 24, 1971, and he was subsequently indicted.

Respondent was arraigned on January 13, 1972, and pleaded not guilty. The parties were directed to file all pretrial motions within 45 days, but no pretrial motions were filed within that period. The case was called and continued on several occasions. During this period respondent filed a motion for judgment of acquittal based, in part, on the following ground:

'The failure of the local board to postpone the induction order pending the determination of the defendant's claim as a conscientious objector was arbitrary and contrary to law and rendered the Order to report for induction invalid. United States v. Gearey, 368 F.2d 144 (2nd Cir. 1966).' App. 4.

In Gearey the Court of Appeals had interpreted the controlling Selective Service regulation2 to require a local board to reopen a registrant's classification if it found that the registrant's conscientious objector views had ripened only after he had been notified to report for induction. At the time respondent was ordered to report for induction, Gearey remained the law of the Circuit. Two months later, however, this Court rejected Gearey in a decision affirming a contrary holding from another Circuit. Ehlert v. United States, 402 U.S. 99, 91 S.Ct. 1319, 28 L.Ed.2d 625 (1971).

When the case proceeded to trial, respondent waived trial to a jury, and the case was tried to the court. At the close of the evidence, the court reserved decision in order to give the parties an opportunity to submit proposed findings. Although it does not appear from the record that either party requested the court to find the facts specially, Fed.Rule Crim.Proc. 23(c), the court filed written findings of fact and conclusions of law, and directed that the indictment be dismissed and the respondent be discharged. The court acknowledged that respondent had failed to report for induction as ordered, 349 F.Supp., at 1070, and that under Ehlert the board is not required to entertain conscientious objector claims arising between notice of induction and the scheduled induction date. Nevertheless, since respondent failed to report for induction at a time when Ehlert had not yet been decided and Gearey represented the prevailing law, respondent was entitled to a postponement of induction until the board considered his conscientious objector claim. The court reasoned that it would be unfair to apply Ehlert to respondent:

'This court cannot permit the criminal prosecution of the defendant under these circumstances without seriously eroding fundamental and basic equitable principles of law.' 349 F.Supp., at 1073.3

The Government filed a timely notice of appeal4 and argued that the District Court had incorrectly concluded that Ehlert was not retroactive.5 Since this Court held long ago that the Government cannot bring an appeal in a criminal case absent an express enabling statute, united States v. Sanges, 144 U.S. 310, 12 S.Ct. 609, 36 L.Ed. 445 (1892), the Court of Appeals considered first whether petitioner's appeal was authorized by 18 U.S.C. § 3731.

The Government contended, and respondent did not dispute, that the intention of Congress in amending 18 U.S.C. § 3731 in 1971 was to extend the Government's right to appeal to the fullest extent consonant with the Fifth Amendment.6 Judge Friendly, writing for the Court of Appeals, carefully reviewed the evolution of the Double Jeopardy Clause and concluded that the draftsmen 'intended to import into the Constitution the common law protections much as they were described by Blackstone.' 490 F.2d, at 873. While available evidence was equivocal on whether 'the crown's inability to appeal an acquittal after a trial on the merits' was incorporated in the common-law concept of double jeopardy, the majority was of the view that decisions by this Court had resolved any such ambiguity adversely to the Government. Id., at 874, citing United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896); Kepner v. United States, 195 U.S. 100, 24 S.Ct. 797, 49 L.Ed. 114 (1904); Fong Foo v. United States, 369 U.S. 141, 82 S.Ct. 671, 7 L.Ed.2d 629 (1962); United States v. Sisson, 399 U.S. 267, 90 S.Ct. 2117, 26 L.Ed.2d 608 (1970). Although the District Court had characterized its action as a dismissal of the indictment, the Court of Appeals concluded that the respondent had been acquitted since the District Court had relied upon facts developed at trial and had concluded 'that the statute should not be applied to (respondent) as a matter of fact.' 490 F.2d, at 878.

Judge Lumbard dissented on two grounds. First, an appeal by the Government was permissible since the District Court had properly characterized its action as a dismissal rather than an acquittal. The District Court's decision was 'essentially a legal determination construing the statute on which the indictment was based,' id., at 882, and not really an adjudication on the merits in the sense that it rested on facts brought out at trial. Second, even if the District Court did acquit respondent, the Double Jeopardy Clause does not stand as an absolute barrier against appeals by the Government; there is a societal interest to be weighed in determining the appealability of the decision.7

II

When a case has been tried to a jury, the Double Jeopardy Clause does not prohibit an appeal by the Government providing that a retrial would not be required in the event the Government is successful in its...

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