United States v. Sisson/Dissent White

by Byron White

United States Supreme Court

399 U.S. 267

UNITED STATES, Appellant,  v.  John Heffron SISSON, Jr.

 Argued: Jan. 20 and 21, 1970. --- Decided: June 29, 1970

Mr. Justice WHITE, with whom The CHIEF JUSTICE and Mr. Justice DOUGLAS join, dissenting.

* I agree with THE CHIEF JUSTICE that this case can be appealed by the Government under the 'motion in arrest' provision of the Criminal Appeals Act. In contrast to the rather clear remedial purpose of the Act, not a single passage in the legislative history indicates awareness by Congress that the words it was using had the effect of distinguishing cases where a congressional Act was held invalid on its face from cases where it was invalidated as applied to a sub-class within the Act's intended reach. In both cases, the indictment is 'insufficient' to state a valid offense. ^[1] In both cases, any 'factual findings' necessary to give the particular defendant the benefit of the constitutional ruling are little more than findings as to the defendant's standing to raise the constitutional issue-they are not findings as to the sufficiency of the evidence to prove the offense alleged in the indictment. ^[2] Thus, if Judge Wyzanski, without making any findings as to Sisson's sincerity, had held the Selective Service Act unconstitutionally overbroad because it purported to subject to the draft in violation of the Free Exercise Clause sincere, nonreligious objectors, this Court would clearly have jurisdiction and would face the question whether Sisson could raise the claim without showing that he was a member of the allegedly protected class. Cf. Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093 (1940). If such a showing had to be made, as the judge here held it did, the question of standing and the facts relevant to that question are surely distinct from the question of whether the defendant committed the offense, or the question of the validity vel non of the statute. ^[3] Cf. Association of Data Processing Service Organizations v. Camps, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970); Barlow v. Collins, 397 U.S. 159, 90 S.Ct. 832, 25 L.Ed.2d 192 (1970).

We asked the parties in this case to consider whether 18 U.S.C. § 3731 confers jurisdiction on the ground that the lower court had sustained 'a motion in bar, when the defendant has not been put in jeopardy.' The majority, after a lengthy discussion of the 'motion in arrest' provision, condescends to address a few remarks to this question, with the suggestion that it really need not discuss the issue at all, since it has concluded that Judge Wyzanski's action amounted to 'an acquittal.' As Mr. Justice BLACK's concurrence indicates, the lengthy discussion of the 'motion in arrest' provision is equally superfluous if indeed it is so clear that Sisson has been 'acquitted.' In reality, the bald assertion that Sisson has been 'acquitted' simply begs the matter at issue: until one knows what a 'motion in bar' is, as well as a 'motion in arrest,' and how the granting of such motions differs from granting a judgment of acquittal, one cannot confidently attach any label to Judge Wyzanski's action.

The only reason the majority gives for concluding that Sisson has been acquitted is based, not on what actually happened, but on what might have happened. Since Judge Wyzanski could have submitted the case to the jury on instructions reflecting his view of the law, and since the jury so instructed could have returned a verdict of 'not guilty,' therefore we must pretend that that is what has actually happened. That suggestion is nonsense. One does not determine 'what in legal effect (Judge Wyzanski's decision) actually was,' ante, at 279 n. 7, by asking 'what in legal effect the decision might have been.' If that were the key question, then this Court should not have had jurisdiction in United States v. Covington, 395 U.S. 57, 89 S.Ct. 1559, 23 L.Ed.2d 94 (1969) (Harlan, J.). There the trial judge accepted the defendant's argument that the Fifth Amendment prevented the Marihuana Tax Act from constitutionally being applied to him. Under the majority's view, that action would amount to an acquittal because the judge might have given the case to the jury under instructions that it should acquit if it found the facts necessary to sustain the defendant's privilege-e.g., that he was not one of the registered marihuana dealers whose conduct was legal under state law. Indeed, if applied consistently the majority's theory would mean that there is no case that could be appealed to this Court under the 'motion in bar' provision of the Criminal Appeals Act for it will always be true that a judge might have sent the case to the jury under instructions reflecting his view that the motion in bar was good, so that if the jury found the facts relied on in the motion, it should acquit. ^[4]

The difference between 'what might have been' and what actually happened in this case is large and critical. Where the jury actually 'acquits' under an erroneous instruction, a successful appeal leading to reversal and a new trial would raise serious constitutional problems by placing the defendant through the hazards of another trial for the same offense. In this case, however, there is no possibility of subjecting Sisson to another trial, or of overturning a factfinder's decision that, whatever the law, Sisson should go free. If Judge Wyzanski's legal theory is incorrect, the jury's verdict of guilty-with judgment no longer 'arrested'-simply remains in effect.

It was precisely this distinction that Senator Knox was referring to in the passage quoted in the majority opinion, ante, at 289: the defendant retains the benefit of any error whatever committed by the court 'in the trial'; but the Government gets an appeal 'upon questions of law raised by the defendant to defeat the trial.' The distinction is also reflected in the majority's quotation from United States v. Ball, ante, at 2129, where the question of what constitutes an 'acquittal' is tied to the question of whether the defendant would be put 'twice in jeopardy' by an appeal.

I suspect that the Court's reluctance to discuss the 'motion in bar' provision and to distinguish the granting of such motions from an acquittal stems from the fact that, unlike the 'motion in arrest,' there is no doubt that a 'motion in bar' properly sets forth an affirmative defense, which necessarily requires resort to facts not found in the indictment or on the face of the 'record.' Thus most of the majority's argument that this case is not appealable as a 'motion in arrest' because '(t)he decision below rests on affirmative defenses,' ante, at 287-288, is simply irrelevant as far as the 'motion in bar' is concerned.

In fact, as the majority seems to concede by its reluctance to reject square precedent on the issue, see ante, at 300 n. 53, our cases make clear that the phrase 'motion in bar' would include a plea like Sisson's that the selective service laws are unconstitutional as applied to him. The Court has never adopted the view that a 'motion in bar' encompasses only the common-law defenses of autrefois acquit, autrefois convict, and pardon. ^[5] Neither did Congress when it passed the Act. The debates show that the plea in bar was thought to embrace such a variety of defenses as the statute of limitations, e.g., 41 Cong.Rec. 2749, and a plea of Fifth Amendment immunity, see 41 Cong.Rec. 2753. The most thorough discussion of the 'motion in bar' in this Court occurs in the concurring and dissenting opinions in United States v. Mersky, 361 U.S. 431, 80 S.Ct. 459, 4 L.Ed.2d 423 (1960). Mr. Justice BRENNAN argued that a motion in bar would encompass every possible affirmative defense that would prevent retrial. Mr. Justice STEWART argued for a narrower interpretation, similar to the concept of a plea in confession and avoidance, i.e., a plea that 'did not contest the facts alleged in the declaration, but relied on new matter which would deprive those facts of their ordinary legal effect.' Id., at 457, 80 S.Ct., at 473.

Even under the narrower interpretation of Mr. Justice STEWART, Sisson's plea qualifies as a 'motion in bar.' For as the majority's opinion makes clear, the crux of the case against Sisson was simply whether or not he had wilfully refused to submit to induction; the question of his sincerity was 'new matter' relied on to deprive the fact of his wilful refusal of its ordinary legal effect. See majority opinion, ante, at 276; United States v. Blue, 384 U.S. 251, 254, 86 S.Ct. 1416, 1418, 16 L.Ed.2d 510 (1966) (Harlan, J.). Just as our cases have permitted the 'motion in bar' to embrace limitations pleas, see e.g., United States v. Goldman, 277 U.S. 229, 48 S.Ct. 486, 72 L.Ed. 862 (1928), and pleas of constitutional privilege, see United States v. Murdock, 284 U.S. 141, 52 S.Ct. 63, 76 L.Ed. 210 (1931), so too they permit the 'motion in bar' to reach cases of this sort, attacking the validity of the statute as applied to the defendant. See United States v. Covington, 395 U.S. 57, 89 S.Ct. 1559, 23 L.Ed.2d 94 (1969) (Harlan, J.); United States v. Blue, supra, 384 U.S. at 254, 86 S.Ct., at 1418 (Harlan, J.).

Procedurally, the fact that the plea is sustained only after a jury verdict of conviction-and the fact that the judge labeled his action as something other than a 'motion in bar'-does not prevent finding a 'motion in bar.' United States v. Zisblatt, 172 F.2d 740, 742 (C.A.2d Cir.), appeal dismissed, 336 U.S. 934, 69 S.Ct. 750, 93 L.Ed. 1093 (1949). Even the legislative history recognizes that such pleas could be sustained after the trial had begun. 41 Cong.Rec. 2749 (1907) (remarks of Senator Rayner). Nor is there any doubt-unlike the case of a motion in arrest-that a proper motion in bar results even though factual issues relevant to the motion have to be tried. See 41 Cong.Rec. 2194 (1907) (remarks of Senator Whyte); id., at 2753 (remarks of Senator Patterson); United States v. Zisblatt, supra. Indeed, Mr. Justice Harlan recently referred to the possibility of trying facts to the judge that were relevant to the motion in bar, and separate from the general issue. See United States v. Covington, supra, 395 U.S. at 60, 89 S.Ct., at 1561. In his words, '(a) defense is thus 'capable of determination' (without trial of the general issue) if trial of the facts surrounding the commission of the alleged offense would be of no assistance in determining the validity of the defense.' Ibid. That description fits this case precisely since, as already noted, the majority itself takes careful pains to point out that the 'general issue'-whether Sisson wilfully refused induction-was at all times separate from the issue raised by Sission's constitutional claim. ^[6]

This case, then, is indistinguishable as far as the 'motion in bar' provision is concerned from United States v. Zisblatt, supra, which the majority cites with approval throughout its opinion. There, as here, the defendant moved for dismissal of the indictment on the basis of an affirmative defense-in that case the statute of limitations. There, as here, the judge reserved ruling on the motion until after the jury had returned a verdict of guilty. There, as here, the judge then granted the defendant's motion, relying on matters 'outside the record.' The Government appealed to the Court of Appeals, where the question became whether or not the appeal should have been taken directly to this Court under the Criminal Appeals Act. Judge Learned Hand, in deciding that the trial court's action amounted to sustaining a motion in bar, made short shrift of the argument that the case was indictinguishable from the case of a directed verdict of acquittal.

'Had the trial judge directed a verdict, so that it would have been necessary upon reversal to subject the defendant to trial before a second jury, that would be 'double jeopardy,' but, although the Constitution gives an accused person the benefit of any mistakes in his favor of the first jury he encounters, whether it has passed upon his guilt or not, it does not extend that privilege to mistakes in his favor by judges. Indeed, were the opposite true, all appeals from decisions in arrest of judgment would be constitutionally futile because no judgment of conviction could be entered when they were reversed.' 172 F.2d, at 743.

The sole question, then, in this case as in Zisblatt, is whether the defendant has been 'put in jeopardy' as that phrase is used in the Criminal Appeals Act. That question in turn centers on whether the phrase is to be read literally, in which case a defendant would be in jeopardy as soon as a jury was impaneled, or whether the phrase is to mean 'constitutional' or 'legal' jeopardy, in the sense that even if the Government were to succeed on appeal, it would be unable to take advantage of its success in new proceedings against the defendant. Although the Government has chosen to read the statute in the former, literal sense, this Court has never resolved the issue. Judge Learned Hand thought there was a 'more than plausible argument' for the latter, 'legal jeopardy' view, but the Government dismissed its appeal to this Court before the question could be decided. United States v. Zisblatt, supra, at 742.

The legislative history of the 1907 Act unmistakably shows that Congress meant to allow the Government an appeal from a decision sustaining a motion in bar in every case except where the defendant was entitled to the protection of the constitutional guarantee against double jeopardy. I find the debates so convincing on that point that I am at a loss to understand why the Government has so readily conceded the issue unless it be to maintain the appearance of consistency, and to protect its interests in securing new criminal appeals legislation before Congress. ^[7] Certainly that concession does not bind this Court; ^[8] even more certainly it is no excuse for the majority's failure to conduct its own examination of the relevant debates.

Out of three full days of debate in the Senate, covering more than 30 pages of the Congressional Record, see 41 Cong.Rec. 2190 2197, 2744-2763, 2818-2825, the majority finds a total of three passages to cite in a footnote as support for its interpretation, see ante, at 304-305 n. 57. In each case, the statements placed in context prove just the opposite of the majority's conclusion. The first reference, to a passage before debate even began, 40 Cong.Rec. 9033, is to Senator Spooner's question whether the bill applied only to questions arising before the impaneling of the jury. As the majority acknowledges, Senator Nelson immediately corrected Senator Spooner, pointing out that the key question was 'jeopardy,' not the impaneling of the jury. The entire brief exchange occurred before the bill was debated, further consideration having immediately been postponed by the objection of other Senators to pursuing the matter at that time. See F. Frankfurter & J. Landis, The Business of the Supreme Court 117 n. 68 (1928). When debate was resumed at the next session of Congress, Senator Spooner unmistakably indicated that jeopardy was being used in the constitutional, legal sense, in direct opposition to the views the majority now tries to ascribe to him:

'The question is whether it subjects a man under any aspect of it to the danger of double jeopardy.

I am content to leave it, under the bill, if it shall become a law, to the Supreme Court of the United States. It is their function to determine what is jeopardy. It is their function to protect the citizens of the United States against any invasion of the constitutional guaranty as to double jeopardy. I think we can rely upon the court to protect as far as the Constitution requires it all defendants * * *.' 41 Cong.Rec. 2762-2763 (1907) (remarks of Sen. Spooner).

In the second passage, 41 Cong.Rec. 2191, the majority quotes Sentator Nelson for the proposition that no appeal would lie where a jury had been impaneled. The actual quotation is that no appeal would lie 'where a jury has been impaneled and where the defendant has been tried * * *.' 41 Cong.Rec. 2191 (emphasis added). In context, it is clear that Senator Nelson is venturing an interpretation of 'jeopardy' in the legal sense. The whole dispute at this point in the debate is primarily between Senator Rayner who opposed the bill, and Senators Bacon and Nelson, who supported the bill. The proponents were at pains to show that a person could not be 'put twice in jeopardy' under any of the provisions of the bill, 41 Cong.Rec. 2193 (remarks of Sen. McCumber; remarks of Sen. Bacon). Senator Rayner was intent on showing how difficult it was for anyone to give an adequate definition of just what 'legal jeopardy' is-he supported a return to the House suggestion, which would have given the defendant the benefit of his favorable decision whether or not he had been 'put in jeopardy.' But not a single passage can be cited to show that either side had the slightest inkling that 'jeopardy' was being used in any but its technical, legal sense as interpreted by this Court and state courts. That was the whole point of Senator Rayner's objection: 'jeopardy' was too vague a term, because nobody could decide exactly when constitutional jeopardy had attached. How the majority can rely on Senator Nelson for the conclusion that 'jeopardy' means 'literal' jeopardy is particularly difficult to understand, given the Senator's own unambiguous explanation that as author of the bill, what he meant was 'constitutional' jeopardy:

'In aimed to put the bill in such a form that it would cover exactly those cases in which the defendant had not been put in jeopardy under the Constitution of the United States. I believe that the bill is limited strictly to that matter.' 41 Cong.Rec. 2757 (emphasis added).

Senator Bacon during this same exchange noted that the 'jeopardy' provisions had been put in 'out of abundance of caution.' 41 Cong.Rec. 2191. He proceeded to explain by his remarks that he meant precisely what the majority today declares he could not have meant-namely, that Congress was simply emphasizing that it was not attempting to subject a defendant to constitutional double jeopardy by a successful government appeal. In fact, when one of the Senators asked whether 'jeopardy' was to be taken in a possibly literal sense, Senator Bacon hastened to reply:

'That is not what the law means by being put in jeopardy at all. The words 'being in jeopardy' are entirely a technical phrase, which does not relate to the fact that a man is in danger as soon as an indictment is preferred against him.' 41 Cong.Rec. 2191 (emphasis added).

It is hardly 'superfluous' for Congress to guard against a construction of an Act that might render the Act unconstitutional. And the fact that the majority would have written the statute differently to avoid what it calls a 'superfluous' reading, is no excuse for ignoring the explicit indication that that is exactly the reading that Congress meant the phrase to bear. ^[9]

The majority's final passage refers to a remark by Senator Patterson suggesting that a motion in arrest was the only provision under the bill that could be raised after a trial had begun. As the majority concedes, one need only read on a bit further to discover that Senator Patterson immediately retracted that suggestion when challenged, insisting that a 'motion in bar' could also be granted after trial had begun and that an appeal would lie as long as no problem of 'constitutional jeopardy' was presented. Indeed, Senator Patterson argued vigorously that there would have been jurisdiction in the Beef Trust Case-a case in which the motion in bar was not only granted after trial had begun, but was also reflected in the judge's instructions to the jury. Senator Patterson's remarks are particularly interesting because, apart from whether he is right on the question of constitutional jeopardy, he makes clear the distinction between a motion in bar and an acquittal which the majority blithely ignores:

'A special plea in bar * * * is a plea that does not relate to the guilt or innocence of the defendant in the sense as to whether he did or not commit the act for which he was indicted. A special plea in bar is that which is set up as a special defense notwithstanding the defendant may be guilty of the offenses with which he is charged; it is for some outside matter; yet it may have been connected with the case. The special plea in bar that was filed by the indicted Chicago packers is a very good illustration of that. Their plea in bar set forth the fact of their having been induced or led, whatever it may have been, to make communications to the law officers of the Government with reference to their business that gave the district attorney information which enabled him to bring about the indictments and to help in their prosecution. That had no reference to the guilt or innocence of the accused. It was a pleading of fact that was independent of the crime for which those packers had been indicted.

'Therefore, Mr. President, there could be no jeopardy in a case of that kind where there was a decision upon the special plea in bar, because it is not under a plea of guilty or not guilty that the insufficiency of a special plea in bar is determined; it is non obstante whether the defendant is guilty or not guilty.' 41 Cong.Rec. 2753.

It is obvious from these remarks that Senator Patterson did not think that the question of 'jeopardy' under the motion-in-bar provision was simply a question of whether the jury had been impaneled. ^[10]

This interpretation is made doubly clear by the remarks of Senator Nelson, the leading proponent of the bill. He also addressed himself to the Beef Trust Case and, unlike Senator Patterson, he suggested that that case could not have been appealed under the Act. But the reason he gave for that conclusion was not that the jury had been impaneled, but that the jury had been impaneled and had returned a verdict of not guilty under the judge's instructions, thus placing the defendants in 'legal jeopardy':

'In that case a jury was impaneled, and the question whether the defendants were entitled to immunity under the immunity law because they had furnished Mr. Garfield and the officials of his Bureau information was submitted to the jury, and the jury under instructions of the court found for the defendants. In that case the defendants under the Constitution had been in jeopardy and in that beef-trust case no appeal could lie.' 41 Cong.Rec. 2757 (emphasis added).

See 41 Cong.Rec. 2750 (remarks of Senator Nelson).

Senator Nelson was thus talking about the majority's 'might have been case'-the case where the judge gives the motion in bar issue to the jury under his novel view of the law, so that a successful government appeal would require retrying the defendant. In the immediately following passage, Senator Nelson makes clear that if the facts pleaded in the special issue are not submitted to the jury, but tried to the judge, there would be no bar to taking an appeal. But in both cases, Senator Nelson, like Senator Patterson, is quite obviously giving his views as to what 'constitutional jeopardy' means.

While the debates are replete with other indications that Congress' concern was with 'double jeopardy,' not 'literal jeopardy,' the clearest such indication occurs in this very exchange between Senator Rayner, who announced his opposition to the bill in any form, 41 Cong.Rec. 2745 and Senators Spooner, Patterson, and Nelson-proponents of the bill. The exchange occupied most of the second day of the three days of debate in the Senate and centered almost entirely on Senator Rayner's proposed amendment. The example that Senator Raynor used to illustrate the difficulties he saw in the bill was a hypothetical case in which a plea in bar-a limitations plea-was sustained halfway through the trial. See 41 Cong.Rec. 2749. In that case, Senator Rayner argued, no one could say with certainty whether the defendant had been put in jeopardy, and hence whether he could constitutionally be retried if the Government's appeal were successful. Senator Rayner did not want to leave the defendant's fate to depend on 'this howling wilderness of confusion upon the subject of what constitutes legal jeopardy.' 41 Cong.Rec. 2750 (emphasis added). His amendment would thus have guaranteed that a defendant could never be retried-whatever the ultimate resolution of the 'legal jeopardy' question. Those who opposed the amendment argued that if it had any substantive effect, it would make the question on any appeal 'moot'; that it was enough to make sure that the Government was not allowed to secure a reversal and proceed again where the result would place the defendant in 'double jeopardy'; and that the bill would leave to the Supreme Court the question of what is 'jeopardy,' and hence protection 'against any invasion of the constitutional guaranty as to double jeopardy.' 41 Cong.Rec. 2761-2763; see also 41 Cong.Rev. 2193. But it is clear-indeed it was again crucial to Senator Rayner's argument-that the Senators assumed that 'jeopardy' was being used in the legal sense:

'The question is whether it subjects a man under any aspect of it to the danger of double jeopardy.

'The Senator (Rayner) says he does not care whether it is double jeopardy or not. Even if a man under the Constitution may properly and lawfully be put on trial again, if he has been tried once, even though it were a mistrial, if he had been for a moment in jeopardy, he insists that we shall provide by law, no matter what the case may be, that he shall not be tried again; that he shall go acquit.

'The matter has been thoroughly argued. I am content to leave it, under the bill, if it shall become a law, to the Supreme Court of the United States. It is their function to determine what is jeopardy. It is their function to protect the citizens of the United States against any invasion of the constitutional guaranty as to double jeopardy. I think we can rely upon the court to protect as far as the Constitution requires it all defendants, without supplementing the Constitution by the Senator's amendment to this bill.' 41 Cong.Rec. 2762-2763 (remarks of Senator Spooner). ^[11]

Senator Rayner's hypothetical example of a plea in bar sustained after trial had begun-an example accepted without question by Senators Patterson, Nelson, and Spooner, and every other Senator participating in the debate completely undercuts the majority's assertion that Congress thought there could be no appeal once the jury had been impaneled. Indeed, in the face of the arguments over the meaning of 'jeopardy' and Senator Rayner's vigorous attack on the vagueness of that term, it is nothing short of incredible for the majority to suggest that Congress left that language in the Act, intending it to be interpreted as providing 'a clear, easily administered test,' ante, at 307. If Congress had intended the majority's interpretation it would have been both simple and logical to explicitly limit appeals to cases 'where the jury has not yet been impaneled,' thus avoiding the possibility of confusion which had been the very topic of discussion for three full days of debate.

The plain fact of the matter is that the majority's post hoc rationalization of the Act simply was not that of Congress. While the debates show considerable disagreement about the meaning of 'jeopardy' in the legal sense, there is not the slightest suggestion anywhere in the legislative history that 'jeopardy' is being used in any other sense. Even where references occur to the impaneling of the jury as the moment when jeopardy attaches, it is clear that jeopardy is still being used in its legal sense-after all, as the majority itself notes, ante, at 305, the impaneling of the jury does in fact often become the constitutionally relevant point in determining that 'legal jeopardy' has attached to prevent a reprosecution. But the one point on which there was unanimous agreement-even from Senator Rayner, see, e.g., 41 Cong.Rec. 2748 (1907)-about the meaning of 'jeopardy,' was that where a convicted defendant on his own motion had secured the arrest of a jury's verdict of guilty, he had not been placed in 'jeopardy.' '(T)he defendant could not complain, either if the judgment of the court shall be entered upon the verdict or a new trial shall be ordered, because it is giving to the defendant a new opportunity to go acquit when, under the trial that was had, he had been convicted.' 41 Cong.Rec. 2753.

For this Court to hold that Sisson has been placed in jeopardy under the motion-in-bar provisions, thus defeating jurisdiction, the Court must be prepared to hold that a successful appeal by the Government, resulting in an order that judgment be entered on the verdict, would violate Sisson's double jeopardy protection. Judge Learned Hand refused even to consider such a suggestion in Zisblatt: 'So long as the verdict of guilty remains as a datum, the correction of errors of law in attaching the proper legal consequences to it (does) not trench upon the constitutional prohibition.' 172 F.2d, at 743.

I find extremely peculiar the path that the Court follows in reaching its conclusion that we cannot hear this case. The 'motion in arrest' provision is confined to its early common-law sense, although there is absolutely no indication that Congress was using the phrase in that sense, and we have never similarly limited the 'motion in bar' provision to its common-law scope. The alleged trouble with the 'motion in arrest' is not any problem of jeopardy, but the fact that Judge Wyzanski relied on facts outside the face of the 'record.' Conversely, the trouble with the 'motion in bar' provision is not the use of outside facts, but solely the fear that Sisson was 'put in jeopardy.' If this were a motion in arrest, there would be no 'jeopardy' problem; and if this were a motion in bar, resort to outside facts would pose no problem. The apparent inconsistency and the refusal to hear the case appear to be due to a dogged determination to fit Judge Wyzanski's action into one 'common-law pigeonhole,' United States v. Mersky, 361 U.S. 431, 442, 80 S.Ct. 459, 465, 4 L.Ed.2d 423 (Brennan, J., concurring), or the other while paying scant attention to the reason for trying to make the fit in the first place, with the result that Judge Wyzanski's action is to be given the no less distorting label of 'acquittal.'

The question in this case should simply be whether or not a judge who upholds a claim of constitutional privilege, thereby declaring the statute unconstitutional as applied, has entered a judgment that Congress intended this Court to be able to review. Surely in a statute as unclear and ambiguous as the majority says this unhappy Act is, the 'words' of the statute are only the first place to start the task of interpretation. The primary guide to interpretation should be the statute's purpose, as indicated by the evil that prompted it, and by the legislative history.

The Act was passed to remedy the situation that gave a single district judge the power to defeat any criminal prosecution instituted by the Government, and to annul as unconstitutional, attempts by Congress to reach a defendant's specified conduct through the use of the criminal machinery. Over and over, this theme is repeated in the debates on the bill, dominating every other topic of discussion except the concern for safeguarding the defendant's privilege against double jeopardy. As THE CHIEF JUSTICE'S opinion details, it is difficult to imagine a case more closely fitting the type of case in which Congress intended to allow an appeal than the instant one.

The majority suggests that we must remember that the Act was 'a compromise,' and that Congress was very concerned about not unduly encroaching on the rights of the defendant. But the 'compromise' between the House and the Senate was only over the areas in which to allow appeal-there was complete accord that constitutional cases of this sort constituted one of those areas; they were indeed the Act's raison d'e tre. Similarly while Congress was concerned to protect the defendant's rights, it had no doubt that those rights were not invaded where a defendant had been found guilty, and the Government appealed the judge's decision that for legal reasons the verdict could not stand. The majority, in short, pays lip service to the policies of the Act without ever applying those policies to the question presented in the case before it. Judge Wyzanski, anxious to do his duty as he saw it, and yet aware that ultimate resolution of the constitutional issue properly belongs in this Court, had two means of passing on the issue while still protection Sission's rights: he could have granted Sisson's motion after a pretrial hearing, see United States v. Covington, 395 U.S. 57, 60, 89 S.Ct. 1559, 1561, 23 L.Ed.2d 94; Fed.Rules Crim.Proc. 12(b)(1), 12(b)(4), or he could, as here, grant the motion only after the jury's verdict of guilty forced him to reach the constitutional question. In either case, none of the interests reflected in the jeopardy provisions of the Constitution-protecting defendants from repeated and harassing trials for the same offense-is in any way endangered. In fact, Sisson's interests if anything are less in jeopardy in the second case than the first where the Government's appeal would force a long delay in beginning the trial itself.

The conclusion that Congress intended judgments of this kind to be reviewed seems to me so clear, that I suspect the majority's neglect of this aspect of the statute amounts to a tacit admission that policy and purpose point overwhelmingly toward finding jurisdiction. If that is the case, then to hang Congress on the technical meaning of the obscure legal terms it happened to use is not only inappropriate, but is strangely out of line with decisions that leap over the plain meaning of words in other contexts to reach conclusions claimed to be consistent with an Act's broader purposes. See Welsh v. United States, 398 U.S. 333, 90 S.Ct. 1792, 26 L.Ed.2d 308 (1970); Boys Markets, Inc. v. Retail Clerks Union, 398 U.S. 235, 90 S.Ct. 1583, 26 L.Ed.2d 199 (1970); Toussie v. United States, 397 U.S. 112, 90 S.Ct. 858, 25 L.Ed.2d 156 (1970); United States v. Seeger, 380 U.S. 163, 85 S.Ct. 850, 13 L.Ed.2d 733 (1965). Compared to some of these examples of 'statutory construction,' it is child's play to conclude that Congress did not really mean to limit 'motion in arrest' to its old common-law meaning, or that at least if it did, it though decisions such as Judge Wyzanski's would have been appealable under some other provisions, such as the 'motion in bar' as long as there was no danger of encroaching on the defendant's jeopardy interests.

Admittedly, the issues raised by Sisson are difficult and far-reaching ones, but they should be faced and decided. It is, to be sure, much more comfortable to be able to control the decision whether or not to hear a difficult issue by the use of our discretion to grant certiorari. But that is no excuse for ignoring Congress' clear intent that the Court was to have no choice in deciding whether to hear the issue in a case such as this. The fear expressed in the prevailing opinion that if we accept jurisdiction we shall be 'cast adrift' to flounder helplessly, see ante, at 299, has a flavor of nothing so much as the long-discarded philosophy that inspired the old forms of action and that led to the solemn admonition in 1725 that '(w)e must keep up the boundaries of actions, otherwise we shall introduce the utmost confusion.' Reynolds v. Clarke, 93 Eng.Rep. 747, 748 (K.B.1725). I cannot agree. I would find jurisdiction.

Notes

1. Failure to set out the elements of a valid offense against the named defendant is the only way an indictment could ever be 'insufficient' because of the unconstitutionality (as opposed to the construction) of the underlying statute.
2. The majority, as THE CHIEF JUSTICE'S opinion makes clear and as I discuss in more detail later, infra, at 331-332 and n. 6, 332-334, repeatedly ignores this difference between the facts necessary to secure relief for Sisson on his constitutional claim, and the facts relevant to the offense of wilfully refusing induction.
3. The majority seems to recognize that it would have difficulty justifying a refusal to hear an appeal challenging Judge Wyzanski's ruling on the Establishment Clause, simply because findings had to be made as to the defendant's standing to raise the issue. See ante, p. 284 n. 16. But there is no real difference in this respect between Judge Wyzanski's free exercise and establishment rulings: both-as the majority concedes, ibid. require factual determinations that Sisson belongs to the class that is entitled to raise the constitutional claim that is being asserted. If the ruling on the first is 'an acquittal,' so is the ruling on the second, since the judge might have sent the establishment issue to the jury too. See infra, at 327-328.
4. Consistently applied, the majority's theory would make no criminal case appealable to this Court. For even where a judge dismisses an indictment or grants a motion in arrest because of defects 'on the face of the record,' it is always true that he might have sent the case to the jury, instructing it to acquit if it found the facts alleged in the indictment, thus insulating the case from review because of the intervening jury acquittal.
5. One will search the majority's opinion in vain for an explanation as to why 'motion in arrest' must be pinned to its common-law meaning, while 'motion in bar'-which the majority also concedes had a unique meaning at common law, see ante, at 300 n. 53-has never been so confined. See United States v. Covington, 395 U.S. 57, 89 S.Ct. 1559, 23 L.Ed.2d 94 (1969) (Harlan, J.); United States v. Blue, 384 U.S. 251, 86 S.Ct. 1416, 16 L.Ed.2d 510 (1966) (Harlan, J.).
6. The majority concedes that the judge's instructions to the jury excluded the question of Sisson's sincerity from the question of Sisson's guilt under the Act. See ante, at 276. Indeed, Sisson's sincerity could not possibly bear on whether Sisson had wilfully refused induction: since Sisson did not seek a I-O classification, he could not even argue his 'sincerity' to show 'no basis in fact' for his I-A classification. Moreover, as the majority again points our, ante, at 274 n. 2, even Sisson recognized that his 'selective' objection to war foreclosed him from obtaining C.O. status under the Act. Sisson's sincerity was thus relevant only to his constitutional defense and was as distinct from the issue on the merits as would have been a claim that the prosecution was time barred. In that sense, the factual questions relevant to Sisson's motion were not part of 'the general issue.' I do not read THE CHIEF JUSTICE'S opinion, which discusses Sisson's defense in a wholly different context, as suggesting anything different. The majority's suggestion, ante, at 299, that a defense of privilege in a speech case may involve facts inextricably intertwined with the general issue, and the majority's reference to United States v. Fargas, ante, at 301, are perfect examples of repeated refusal to come to grips with the facts of this particular case where the issues were not and could not have been intertwined. Whether Sisson might have demanded a jury trial on the facts relevant to his motion is also a question not presented here, any more than it was in United States v. Covington, 395 U.S. 57, 89 S.Ct. 1559, 23 L.Ed.2d 94 (1969) (Harlan, J.).
7. See majority opinion, ante, at 306-307 n. 61. Of course, the legislation that the Government sought shortly after the Act was passed-requiring a defendant to raise his defenses before trial-does not necessarily mean that the then-Attorney General interpreted 'jeopardy' to mean literal jeopardy. The legislation would have been equally needed to prevent defendants from waiting until 'constitutional jeopardy' had attached, before securing relief on a motion in bar. Indeed, it is because it was thought that 'constitutional jeopardy' had attached in the Beef Trust Case (United States v. Armour & Co.), 142 F. 808 (D.C.N.D.Ill.1906) that no appeal was thought to lie. See infra, at 341-342. Since the Beef Trust Case was the motivating force behind the Criminal Appeals Act, it would be natural for the Attorney General to seek legislation that would force a similar defendant to raise and get a decision on his plea in bar before trial began, thus avoiding any possibility that the defendant would escape by being placed in legal jeopardy.
8. To argue that the statute was enacted for the benefit of the Department of Justice hardly justifies relying on the Government's concession as additional authority for the proper interpretation of the Act. The relationship of the Department of Justice to the Criminal Appeals Act is not that of an agency to the statute creating the agency and charging it with enforcement of the Act's provisions. Indeed when it comes to the question of this Court's jurisdiction, no institution has special authority for exploring and determining that question other than this Court. The Solicitor General in this case is simply one of the litigants; to give special weight to his strategy in arguing this case at the very least does a disservice to Sisson, who-seemingly contrary to his own interests-has also made a concession: namely, that this Court does have jurisdiction under both the 'motion in bar' and 'motion in arrest' provisions. The views of the Justice Department on the 'motion in bar' provision are entitled to precisely the same weight as the majority extends to Sisson's views and to the Justice Department's views on the 'motion in arrest' provision.
9. This interpretation is reinforced at other points in the debate in a manner that also explains why the 'jeopardy' language occurs in the motion-in-bar provision, and not in the other provisions. The Senators thought that indictments would normally be dismissed before trial began, so there would be no 'jeopardy' problems in allowing appeals in such cases. Similarly, a motion in arrest after judgment was thought to involve no jeopardy problems, because the defendant made the motion himself in an attempt to overturn a verdict of guilty. See 41 Cong.Rec. 2753. But it was recognized that the motion in bar could be granted after trial had started, see 41 Cong.Rec. 2749; and it was not obvious whether in such a case 'jeopardy' would have attached in the constitutional sense to prevent retrial. Hence, the 'jeopardy' language was added 'out of abundance of caution' to make clear that Congress was simply bringing that provision into line with the other provisions: i.e., appeals were to lie only where 'constitutional jeopardy' had not attached; but jeopardy, not the impaneling of the jury, was to be the test of appealability in the case of the motion in bar just as in the case of the motion in arrest. See 41 Cong.Rec. 2191 (remarks of Senator Bacon); 41 Cong.Rec. 2756 (remarks of Senator Nelson) ('out of extreme caution and to put it exactly in harmony and in line with the provisions of the three preceding paragraphs, we have expressly provided that where the defendant has been put in jeopardy he can not be reindicted').
10. The majority's apparent willingness to accept Senator Patterson's suggestion that the Beef Trust Case could have been appealed, ante, at 304 n. 57, virtually concedes the issue. For the whole point is that in distinguishing between the plea and the issue on the merits, the Senator was plainly giving his views as to what constitutes 'legal jeopardy.'
11. It should be noted that even Senator Rayner's amendment did not purport to narrow the scope of cases in which the Government could appeal; it only sought to remove any 'double jeopardy' problem by declaring that the defendant should retain a favorable decision, whatever the result on appeal.

On the third day of debate, the amendment was agreed to, modified to read:

'Provided, That if upon appeal or writ of error it shall be found that there was error in the rulings of the court during the trial, a verdict in favor of the defendant shall not be set aside.' 41 Cong.Rec. 2819.

Senator Rayner's earlier opponents continued to insist that no material change had been made by the amendment, since as they had argued, there would be no appeal in any event where the defendant had received a 'verdict' in his favor, see opinion of THE CHIEF JUSTICE, ante, p. 308, as opposed to securing a favorable 'judgment' by the trial court's action in sustaining his plea or arresting judgment. See 41 Cong.Rec. 2820. Without explanation, the Conference Committee changed the amendment to read:

'Provided, That no writ of error shall be taken by or allowed the United States in any case where there has been a verdict in favor of the defendant.'

Subsequent amendments to the Act omitted the proviso altogether (which no longer appears in the current version) thus vindicating the arguments of Senator Rayner's opponents that the amendment had no substantive effect.