United States v. Jenkins, 79

Decision Date11 December 1973
Docket NumberNo. 79,Docket 73-1572.,79
Citation490 F.2d 868
PartiesUNITED STATES of America, Appellant, v. Ronald S. JENKINS, Appellee.
CourtU.S. Court of Appeals — Second Circuit

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

L. Kevin Sheridan, Asst. U. S. Atty. (Robert A. Morse, U. S. Atty., E. D. N. Y., of counsel), for appellant.

Before LUMBARD, FRIENDLY and FEINBERG, Circuit Judges.

FRIENDLY, Circuit Judge:

This appeal by the United States from a judgment of the District Court for the Eastern District of New York dismissing an indictment after a bench trial is the latest in a growing list of cases showing that the eagerly awaited 1970 amendment of the Criminal Appeals Act, 18 U.S.C. § 3731, 84 Stat. 1890, has not resolved all the problems in this area.1

The statute, so far as here relevant, reads as follows:2

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.

The indictment here at issue charged that defendant Jenkins, a registrant under the Universal Military Training and Service Act, "knowingly failed and neglected to perform a duty required of him under and in the execution of said Act and Regulations, by knowingly refusing and failing to submit to induction into the armed forces of the United States, after notice had been given to the defendant by Local Board No. 50, exercising jurisdiction in that behalf, requiring the defendant to report for induction on the 24th day of February, 1971," in violation of 50 U.S.C. App. § 462(a).

Jenkins waived trial by jury, and the case was heard by Judge Travia, who later filed an opinion containing findings of fact and conclusions of law. The facts developed at trial were as follows:

After receiving an order to report for induction on February 24, 1971, Jenkins wrote the Local Board asking to be reclassified as a conscientious objector. On the day before his scheduled induction, he went to the draft board and requested Form 150, the conscientious objector application form. In response to his request, a Board representative advised him to draft a brief statement summarizing his beliefs, which he did. The Board then denied his request for postponement of his induction. Jenkins failed to report for induction the next day and subsequently returned his completed Form 150 to the Board.

After extensive discussion, the court concluded that "The indictment in this case is dismissed and the defendant is discharged." Recognizing that in Ehlert v. United States, 402 U.S. 99, 91 S.Ct. 1319, 28 L.Ed.2d 625, decided on April 21, 1971, the Supreme Court had held that local boards need not consider conscientious objector claims filed by registrants after they receive their induction orders, the judge ruled that Ehlert should not be given retroactive effect in this case and that Jenkins' late-crystallizing conscientious objection claim was a valid defense to the criminal charge under this court's decision in United States v. Geary, 368 F.2d 144 (2d Cir. 1966), which Ehlert disapproved, 402 U. S. at 101 n. 3, 91 S.Ct. 1319, 28 L.Ed.2d 625. The Government contends that this ruling is contrary to our recent decision in United States v. Mercado, 478 F.2d 1108 (2 Cir. 1973), in which we applied Ehlert to a registrant with a conscientious objection claim that had allegedly crystallized after notice of induction. Appellee argues that Mercado is distinguishable. However, we do not reach that issue since, as we hold, we are without jurisdiction to entertain the Government's appeal.


Appellant asserts, and appellee does not dispute, that Congress intended to extend the Government's right of appeal in criminal cases as far as it constitutionally could. If the language of the statute left any doubts on that score, they would be set at rest by the report of the Senate Committee on the Judiciary, 91st Cong., 2d Sess., No. 91-1296, at 4-13. The appeal here will therefore lie unless the Double Jeopardy clause prevents interference with appellee's acquittal. To determine that question, we must look not merely to the familiar but unilluminating words of the Double Jeopardy clause, "nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb," but also to its historical background, the proceedings leading to its adoption as part of the Fifth Amendment, and the course of decisions thereunder.

While the precise origin of the protection against double jeopardy is unclear, it is certain that the notion is very old.3 The Greeks apparently treated the concept as part of a primitive form of res judicata. In 355 B.C., Demosthenes stated, "the laws forbid the same man to be tried twice on the same issue, be it a civil action, a scrutiny, a contested claim, or anything else of the sort." 1 Demosthenes 589 (Vance trans. 1962). Justinian's Corpus Juris Civilis recognized the special applicability of the principle to criminal proceedings through the maxim that "the governor should not permit the same person to be again accused of crime of which he has been acquitted." 11 Scott, The Civil Law 17 (1932).4 Similarly, canon law early declared that "there shall not rise up a double affliction," a precept which was apparently based on the notion that God does not punish twice for the same offense. Bartkus v. Illinois, 359 U.S. 121, 152 n. 4, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959) (Black, J., dissenting). The related principle that clerics could not be punished in the king's courts after having been tried under canon law was a major source of the dispute between Becket and Henry II; Becket ultimately prevailed, albeit posthumously. 1 Pollock and Maitland, A History of English Law 448-49 (2d ed.1899). In the thirteenth century, as Bracton reports, the bar against multiple prosecutions assumed a rather grim urgency. Since many criminal offenses were tried by battle between the wronged party and the alleged offender, it was evident that a series of prosecutions would ultimately produce a "conviction" against all but the hardiest combatants, if enough "appealors" were willing to try their hands at the case. Once the defendant had endured one such trial for "one deed and one wound," Bracton wrote, "he will depart quit against all, also as regards the king's suit, because he thereby proves his innocence against all, as though he had put himself on the country and it had exonerated him completely." 2 Bracton, On the Laws and Customs of England 391 (Thorne trans. 1968).5

By the time of Lord Coke, the nascent double jeopardy concept had begun to mature into a complex of common law pleas, the most prominent of which were autrefois acquit and autrefois convict. The first, according to Coke, provided that a defendant could block a second trial by proving that he had previously been acquitted of the same offense. Similarly, under autrefois convict a defendant could plead a former conviction in bar of a second indictment for the same crime. See 3 Coke, Institutes of the Laws of England 213-14 (1797 ed.); 2 Hale, Pleas of the Crown 240-54 (Dougherty ed. 1800). Reprosecution after an acquittal was permitted, however, if the first indictment erroneously failed to charge an offense. In Vaux's Case, 4 Coke 44, 76 Eng.Rep. 992 (Q.B. 1591), it was held that if the first indictment was deficient for failure to charge all the elements of the felony and a second indictment was brought for the same offense, a plea of autrefois acquit would be bad even though the acquittal had not resulted from an objection to the indictment. A different rule applied in the case of an error of law committed by the court in the course of the trial. Even if the lower court's error was egregious, such as a mistaken direction by the judge that the felony was not committed on the day named in the indictment, or an erroneous determination that the conduct alleged and proved did not constitute a felony, the defendant could plead autrefois acquit to a second indictment.

Blackstone's careful classification of the various common law pleas in bar indicates that by the late eighteenth century, the status of the double jeopardy protection was well settled. The four pleas in bar, according to Blackstone, were autrefoits acquit, autrefoits convict, autrefoits attaint (former attaint, founded on the reasoning that "a second prosecution cannot be to any purpose, for the prisoner is dead in law by the first attainder"), and pardon. In terms that plainly anticipated the Fifth Amendment's language, Blackstone described it as a "universal maxim of the common law of England, that no man is to be brought into jeopardy of his life more than once for the same offence." 4 Blackstone, Commentaries on the Laws of England 335-36 (Sharswood ed.1873). As in the time of Coke, the protection was afforded only if the defendant could legally have been convicted on the first indictment. 4 Blackstone, supra, 335 n. 5 (Chitty).

In two critical respects, however, the law changed between the seventeenth and eighteenth centuries. In 1660, the King's Bench disapproved earlier cases that had permitted the crown to seek a new trial after an acquittal. Rex v. Read, 1 Lev. 9, 83 Eng.Rep. 271 (K.B. 1660). Although the ruling was made over the dissent of a well-respected judge, the court stuck to its position with increasing confidence in later cases. See, e. g., Rex v. Jackson, 1 Lev. 124, 83 Eng.Rep. 330 (K.B.1661); Rex v. Fenwick & Holt, 1 Sid. 149, 153, 82 Eng.Rep. 1025, 1027 (1663). See also 21 Viner, A General Abridgement of Law and Equity 478-79 (1793).6 By the time of Blackstone, it appears that although the king was...

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