United States v. Sisson, 399 U.S. 267 (1970)
United States v. Sisson
No. 305
Argued January 20-21, 1970
Decided June 29, 1970
399 U.S. 267
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
Syllabus
Appellee was indicted for willfully failing to report for induction as ordered by his local draft board. He moved to dismiss the indictment because (1) the involvement in Vietnam violated international law, (2) he "reasonably believed the government’s involvement in Vietnam to be illegal," (3) the Selective Service Act and its regulations were unconstitutional, as the local boards’ procedures lacked due process, and (4) compulsory conscription in peacetime was unnecessary, and stifled fundamental liberties. The District Judge dismissed the motion, and the case proceeded to trial. The instructions to the jury made no reference to a conscientious objector claim, or to whether the appellee was "sincere" in his beliefs, but advised the jury that the crux of the case was whether appellee’s refusal was "unlawful, knowingly, and willfully" done. The jury returned a verdict of guilty. Thereafter, appellee made a motion under Fed.Rule Crim.Proc. 34 to arrest the judgment on the ground that the District Court lacked jurisdiction. The District Court, in granting what it termed a motion in arrest of judgment, ruled not on the jurisdictional contention, but on appellee’s "older contention" that the indictment could not charge an offense based on the Establishment, Free Exercise, and Due Process Clause arguments relating to conscientious objections to the Vietnam conflict. The court stated the facts of the case and described how appellee’s demeanor on the stand convinced the judge of his sincerity. The court held that the Free Exercise and Due Process Clauses prohibited application of the Draft Act to appellee to require him to fight in Vietnam because, as a "sincerely conscientious man," his interest in not killing in Vietnam outweighed "the country’s present need for him to be so employed." The court also ruled that § 6(j) of the Selective Service Act violates the Establishment Clause. The Government bases its claim that this Court has jurisdiction to review the case on the "arresting judgment" provision of 18 U.S.C. § 3731, which provides that an appeal may be taken to the Supreme Court from a decision (1) arresting a judgment of conviction, (2) for insufficiency of the indictment or information, (3) where such decision is based upon the invalidity or construction of the statute upon which the indictment or information is founded.
Held:
1. The decision below was not one "arresting a judgment of conviction." Pp. 280-287.
(a) In granting a motion in arrest of judgment under Fed.Rule Crim.Proc. 34, which preserves the common law requirement, a district court must not look beyond the face of the record, and thus a decision based on evidence adduced at trial cannot be one arresting judgment. Pp. 280-282.
(b) The District Court clearly went beyond the "face of the record" in reaching its decision, as the court’s factual findings concerning appellee’s sincerity and opposition to fighting in Vietnam are essential to its disposition of the case. Pp. 283-284.
(c) Even assuming, arguendo, that the parties could secure review under the "motion in arrest" provisions of § 3731 on the basis of a stipulation, there certainly was no formal stipulation here, and the most that can be said is that, after the lower court’s decision, the Government chose to accept the opinion’s findings of fact. Pp. 284-287.
2. The indictment here was not insufficient, as it recited the necessary elements of an offense, and did not allege facts that themselves demonstrate the availability of a constitutional privilege. Pp. 287-288.
3. Since the disposition below was based on factual conclusions not found in the indictment, but resulting from evidence adduced at trial, the decision was, in fact, an acquittal rendered after the jury’s verdict of guilty, and not, as characterized by the trial judge, an arrest of judgment. Pp. 288-290.
4. The legislative history of the Criminal Appeals Act, rather than manifesting a broad congressional directive to this Court to review important legal issues, shows a legislative policy to provide review in only certain cases and to restrict it to those instances. A primary concern of the Act is that no appeal be taken by the Government from an acquittal, no matter how erroneous the underlying legal theory. Pp. 291-299.
5. This Court does not have jurisdiction in this case under the "motion in bar" provision of § 3731. Pp. 299-307.
(a) A motion in bar cannot be granted on the basis of facts that would necessarily be tried with the general issue in the case, and, here, the District Judge based his findings on evidence presented in the trial of the general issue. Pp. 301-302.
(b) An appeal from a motion in bar cannot be granted after jeopardy attaches, and, in light of the compromise origins of the Criminal Appeals Act, the concern of some Senators over retrial of a defendant whose trial ended after the jury was impaneled, and the long-time consistent interpretation by the Government, jeopardy attaches when the jury is sworn. Pp. 302-307.
297 F.Supp. 902, dismissed.