United States v. Ponto

• Citation: 454 F.2d 647
• Decision Date: 07 July 1971
• Docket Number: No. 18396.,18396.
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Richard Victor PONTO, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

454 F.2d 647 (1971)

UNITED STATES of America, Plaintiff-Appellant, v. Richard Victor PONTO, Defendant-Appellee.

No. 18396.

United States Court of Appeals, Seventh Circuit.

July 7, 1971.

COPYRIGHT MATERIAL OMITTED

William J. Bauer, U. S. Atty., Richard F. Sprague, Asst. U. S. Atty., Chicago, Ill., John Peter Lulinski, Jeffrey Cole, Asst. U. S. Attys., Assisted by: Lawrence Levin, Legal Intern., of counsel, for appellant.

Gerald M. Werksman, Chicago, Ill., for appellee.

Before HASTINGS, Senior Circuit Judge, and KERNER and STEVENS, Circuit Judges.

KERNER, Circuit Judge.

The defendant, Richard Victor Ponto, was indicted for failure to submit to induction into the Armed Forces. 50 U.S.C. App. § 462. After hearings before the district court but prior to trial, the judge granted the defendant's motion alternatively requesting the court "to dismiss the indictment or for a directed judgment of acquittal." The government appeals.

The defendant, who was living with his wife and child, had been classified III-A (hardship) by his local draft board. In January, 1966, he was reclassified I-A after the board learned that he was no longer living with his wife and child nor contributing to their support. On March 3, 1967, after other unsuccessful attempts to contact defendant, it ordered Ponto to report for induction on March 27, 1967; the order was returned by the post office indicating that defendant had moved.

On March 27, the day he was to report for induction, defendant requested a III-A classification claiming that he was now the sole means of support for his mother, who, he stated, "is sick and unable to work at this time." He filed a Dependency Questionnaire (SSS Form 118) representing his annual contribution to his mother's support to be $1,500; he listed his mother's annual income as $2,500. His income for the prior year was $5,000.

The board responded that it had considered Ponto's request for deferment and decided "that there be no change in your classification." Ponto was subsequently given a courtesy hearing at which the board requested him to produce income tax returns for his mother and himself.

Two months later, on July 14, 1967, the board, not receiving Ponto's income tax returns, decided again "that there be no change in your classification and that your orders stand." On August 11, the board reached the same conclusion after considering W-2 forms Ponto submitted for himself and his mother.

On September 18, 1967, the defendant was ordered to report for induction, but refused to submit. In March, 1968, the United States Attorney's office, in a letter to the Deputy State Director of the Selective Service System of Illinois, indicated that it would not prosecute Ponto. In May, 1969, however, the defendant was indicted.

Prior to hearings before the district judge, counsel for the defendant filed a motion with the court entitled "Motion to dismiss the indictment or for a directed judgment of acquittal." In the motion, counsel called attention to two letters he found in the Selective Service file:

a. A letter from the United States Attorney to the Deputy State Director of the Selective Service System, dated March 18, 1968, recommending that the outstanding order for induction of defendant be cancelled and that his classification be reopened (Exhibit A).

b. A letter from the United States Attorney to the Chief of the Administrative Regulations Section, Criminal Division, Department of Justice, dated October 8, 1968, stating that the United States Attorney\'s office was of the opinion that a prima facie case for a hardship deferment had been made by defendant and that denial of the III-A classification by the Local Board was in error (Exhibit B).

Following this recitation, counsel stated in the written motion:

One can conclude from these letters that the United States Attorney concurs in the legal correctness of the defendant\'s plea of not guilty. To put the defendant to the anxiety of a trial and to consume the court\'s time in litigating an issue upon which the parties agree is the height of folly.

Wherefore, the defendant moves for a dismissal of the indictment or, in the alternative, for a directed judgment of acquittal.

Hearings were conducted on three occasions before the district judge in which counsel for both sides argued the defendant's pending motion. Defendant was not present at any of the hearings. On the first day, the judge stated that he denied the defendant's motion without prejudice. Following this, counsel and the judge discussed the possibility of the defendant voluntarily agreeing to induction. The case was continued for a few days in order for defense counsel to inquire into this possibility.

On the second hearing date, a suggestion was made by the judge that the United States Attorney review the Selective Service file to determine whether the board had properly processed Ponto's claim for re-classification. The United States Attorney also agreed to review the cases submitted to the court by defense counsel.

On the following day, the final hearing was held. Argument concerned the circumstances surrounding the defendant's attempt to reopen his classification. The judge stated at one point:

The question—there are two questions. One is whether or not in fact there was a proper basis for this kind of a deferment, and if there was a dependency that didn\'t exist in the same quality and in the same nature that existed at the time of the notice for him to report for induction or at the last appearance before the local board.

The second question is whether or not the local board in opening up the case and having the file reviewed unilaterally deprived him of a right to appeal, should they decide against him on the basis of their review.

The judge then said that he would allow "a minute motion for summary supported with an exhibit, to-wit, a copy of the Selective Service file."

The United States Attorney responded:

Well, your Honor, we would object to proceeding under a motion for summary judgment because, to my knowledge, there is no such thing in a criminal case. Now, I just would object to that most vigorously. That just is not a proper way to dispose of a case.

The Court: A motion to dismiss.

Defense Counsel: I have made my motion to dismiss.

The Court: Supported by a copy of the Selective Service file, * * *.

Argument continued on the propriety of the board's refusal to reopen Ponto's file. Statements were made concerning information in the Selective Service file and of the applicable regulations governing lateness and the consideration by a board of evidence filed by a registrant.

After some discussion of these issues, the judge stated:

I honestly am of the opinion that in order to interpret that regulation as constitutional, as not a violation of due process of law, I must interpret it as reading that the board finds that what is submitted is not evidence or, if it is evidence, it is not new, but that if the board finds that what is submitted is both evidence and new, it must reopen the case, for to do otherwise would be to deny the registrant the opportunity of appeal.

And, after a short colloquy:

Defense counsel: Will your Honor grant my motion to dismiss?

The Court: Yes. Attach a copy of the file to your minute order and motion.

The government appeals the court's order, arguing that defendant had failed to state a prima facie case which would entitle him to a reopening, as required by § 1625.2 of the Selective Service Regulations, 32 C.F.R. § 1625.2. It also argues that the defendant was barred from a reopening under § 1625.2 because he requested reclassification after the mailing of an induction order to him, and he did not show a change in status due to circumstances over which he had no control. The defendant, relying on the Criminal Appeals Act, 18 U.S.C. § 3731, argues to us that the government has no right to appeal the order of the district court or, in the alternative, that its appeal must be directed to the Supreme Court.

We turn our attention to the jurisdictional question. Section 3731 deals with the government's right to appeal in a criminal case. The pertinent provisions state:

An appeal may be taken by and on behalf of the United States from the district courts direct to the Supreme Court of the United States in all criminal cases in the following instances:

* * * * * *

From a decision or judgment sustaining a motion in bar, when the defendant has not been put in jeopardy.

An appeal may be taken by and on behalf of the United States from the district courts to a court of appeals in all criminal cases in the following instances:

From a decision or judgment setting aside, or dismissing any indictment or information, or any count thereof, except when a direct appeal to the Supreme Court of the United States is provided by this section.¹

* * * * * *

The defendant, relying on § 3731, posits two interpretations of the disposition by the judge. First, he asserts that the motion for "a dismissal of the indictment, or in the alternative, for a directed judgment of acquittal" can be characterized as a "motion in bar," directly appealable to the Supreme Court. (See the second paragraph of § 3731 quoted above.) Second, he claims that the order was not a judgment "setting aside, or dismissing any indictment * * *," (see the fourth paragraph of § 3731 quoted above) and thus not appealable to us.

We approach the question of the government's right to appeal and our jurisdiction under § 3731 with some trepidation. Courts have admitted difficulty in interpreting the confusing provisions of § 3731.² United States v. Sisson, 399 U.S. 267, 307-308, 90 S.Ct. 2117, 26 L.Ed.2d 608 (1970); United States v. Weller, 401 U.S. 254, 91 S.Ct. 602, 28 L.Ed.2d 26 (1971). The act requires us to characterize the disposition of the district court by reference to common law pleading distinctions which have been altered by the Federal Rules of Criminal Procedure. See United States v....