United States v. Weller/Opinion of the Court

by Potter Stewart

United States Supreme Court

401 U.S. 254

United States  v.  Weller

 Argued: Dec. 10, 1970. --- Decided: Feb 24, 1971

In this case we are called upon once again to construe the elusive provisions of the Criminal Appeals Act, 18 U.S.C. § 3731. ^[1] Somewhat ironically, the argument that we have no jurisdiction over this appeal is made by the appellant, the United States. The appellee, on the other hand, insists the case is properly here.

A grand jury in the United States District Court for the Northern District of California indicted the appellee for refusing to submit to induction into the Armed Forces, a violation of 50 U.S.C.A.pp. § 462(a) (1964 ed., Supp. V). ^[2] In the Selective Servie proceedings leading up to his induction notice, the appellee sought conscientious objector status. He specifically requested that his lawyer be allowed to accompany him at the time of his personal appearance before his local board, but the board, relying on 32 CFR § 1624.1(b), denied the request and conducted the personal appearance without the appellee's counsel present. ^[3] Subsequently, the board declined to reopen the appellee's I-A classification, and the appellee unsuccessfully exhausted administrative review. His order to report for induction, his refusal to submit, and this prosecution followed.

The appellee moved before trial to dismiss his indictment on the ground, among others, that the denial of counsel at the time of his personal appearance before the board deprived him of due process of law under the Fifth Amendment. The District Court did not squarely decide this constitutional claim, but granted the motion to dismiss on the ground that the regulation prohibiting representation by counsel at a registrant's personal appearance was not authorized by the Military Selective Service Act. 309 F.Supp. 50. The court relied primarily upon Greene v. McElroy, 360 U.S. 474, 79 S.Ct. 1400, 3 L.Ed.2d 1377, in which our opinion underscored 'the Court's concern that traditional forms of fair procedure not be restricted by implication or without the most explicit action by the Nation's lawmakers, even in areas where it is possible that the Constitution presents no inhibition.' 360 U.S., at 508, 79 S.Ct. at 1419. Viewing the personal appearance as 'a critical stage of an administrative process at which substantial rights are adjudicated,' 309 F.Supp., at 51, the District Court found the various provisions of the Selective Service Act conferring rulemaking power on the Executive insufficient to authorize a regulation denying counsel at local board hearings. ^[4]

The United States filed a notice of appeal to this Court. Subsequently, the Government reconsidered its position and concluded that this Court lacked jurisdiction over the appeal. Accordingly, the Solicitor General filed a motion asking us to remand the case to the United States Court of Appeals for the Minth Circuit. We postponed further consideration of the question of jurisdiction until the hearing of the case on the merits. 397 U.S. 985, 90 S.Ct. 1118, 25 L.Ed.2d 394. We now conclude that this appeal is not properly here and, pursuant to the provisions of the Criminal Appeals Act, remand the case to the Court of Appeals. ^[5]

The appellee urges that we have jurisdiction under either of two sections of the Act, one relating to dismissal of an indictment based on the construction of the statute on which the indictment is founded and the other to motions in bar. ^[6] Considering first the 'construction of the statute' provision, the controlling precedent is this Court's decision in United States v. Mersky, 361 U.S. 431, 80 S.Ct. 459, 4 L.Ed.2d 423. In that case, as in this one, there were in issue both a statute and a regulation promulgated pursuant to it. In finding jurisdiction in Mersky, however, the Court noted that 'neither the statute nor the regulations are complete without the other, and only together do they have any force. In effect, therefore, the construction of one necessarily involves the construction of the other * * *. When the statute and regulations are so inextricably intertwined, the dismissal must be held to involve the construction of the statute.' 361 U.S., at 438, 80 S.Ct., at 463. ^[7]

The relation between the Selective Service Act and the regulation forbidding representation by counsel before local boards is wholly different from the situation in Mersky. The regulation is not at all 'called for by the statute itself,' 361 U.S., at 438, 80 S.Ct., at 463. Indeed, so independent are the statute and the regulation that it would be entirely possible for a regulation covering the same subject matter to provide exactly the reverse of what the present regulation requires. It cannot be said here that 'the construction of one necessarily involves the construction of the other.' Since this statute and this regulation fall so far short of being 'inextricably intertwined,' we conclude that the dismissal of the appellee's indictment was not 'based upon the * * * construction of the statute.' ^[8]

We turn, accordingly, to the 'motion in bar' provision of the Criminal Appeals Act. Two preliminary observations are necessary. First, a 'motion in bar' must be taken to mean whatever was meant by a 'special plea in bar' in the Act as originally passed in 1907. ^[9] Second, this Court has never settled on a definitive interpretation of what constitutes a 'motion in bar.' ^[10]

During its debates on the Criminal Appeals Act in 1907, Congress paid relatively little attention to the 'special plea in bar' section of the Act. The clearest statement of its meaning was given by one of the bill's cosponsors, Senator Patterson:

'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.' ^[11]

The tenor of this definition accords with traditional usage, for at common law the most usual special plea in bar took the form of confession and avoidance. 1 J. Chitty, Treatise on Pleading and Parties to Actions *551-552 (16th Am. ed. 1883). In criminal cases the most common special pleas in bar presented claims of double jeopardy or pardon, 2 J. Bishop, New Criminal Procedure § 742 (2d ed. 1913), and sometimes the statute of limitations, id., at § 799(5).

A characteristic common to all these definitions is that a special plea in bar did not deny that a defendant had committed the acts alleged and that the acts were a crime. Rather, it claimed that nevertheless he could not be prosecuted for his crime because of some extraneous factor. A situation in which the defendant claims that his act was simply not a crime would be beyond the scope of this test.

Our decisions are consistent with this reading of the 'motion in bar' provision. In early cases under the section, the most familiar plea in bar interposed the statute of limitations. E.g., United States v. Goldman, 277 U.S. 229, 236-237, 48 S.Ct. 486, 488, 72 L.Ed. 862; United States v. Rabinowich, 238 U.S. 78, 83 84, 35 S.Ct. 682, 683, 59 L.Ed. 1211. In other cases defendants have claimed immunity because of prior self-incriminatory testimony or a statutory grant of immunity. United States v. Blue, 384 U.S. 251, 86 S.Ct. 1416, 16 L.Ed.2d 510; United States v. Hoffman, 335 U.S. 77, 78, 68 S.Ct. 1413, 1414, 92 L.Ed. 1830; United States v. Monia, 317 U.S. 424, 63 S.Ct. 409, 87 L.Ed. 376. See also United States v. Ewell, 383 U.S. 116, 86 S.Ct. 773, 15 L.Ed.2d 627 (speedy trial); United States v. Hark, 320 U.S. 531, 64 S.Ct. 359, 88 L.Ed. 290 (governing regulation revoked after violation but before indictment); United States v. Thompson, 251 U.S. 407, 40 S.Ct. 289, 64 L.Ed. 333 (first grand jury refused to indict; charges submitted to second grand jury without court approval); United States v. Celestine, 215 U.S. 278, 30 S.Ct. 93, 54 L.Ed. 195 (challenge to federal jurisdiction). ^[12]

Testing the appellee's motion to dismiss by this standard, we think it plain that it cannot qualify as a 'motion in bar.' The appellee did not deny that he refused to submit to induction, but he claimed that his conduct was not a crime because of the prior denial of counsel. He has not confessed to a crime and claimed immunity from prosecution; he argues that he has committed no crime.

We conclude, therefore, that we have no jurisdiction over this appeal under either the 'construction of the statute' or 'motion in bar' provisions of the Criminal Appeals Act. Accordingly, this case is remanded to the United States Court of Appeals for the Ninth Circuit for further proceedings in that court.

It is so ordered.

Remanded.

Mr. Justice DOUGLAS, dissenting.

Notes

1. The end of our problems with this Act is finally in sight. The Omnibus Crime Control Act of 1970, § 14(a), 84 Stat. 1890, amended the Criminal Appeals Act to read in pertinent part as follows:
2. Military Selective Service Act of 1967, § 12(a), 50 U.S.C.App. § 462(a) (1964 ed., Supp. V), provides in pertinent part: '(A)ny person * * * who * * * refuses * * * service in the armed forces * * * or who in any manner shall knowingly fail or neglect or refuse to perform any duty required of him under or in the execution of this title * * * shall, upon conviction in any district court of the United States of competent jurisdiction, be punished by imprisonment for not more than five years or a fine of not more than $10,000, or by both such fine and imprisonment * * *.'
3. 32 CFR § 1624.1(b) (1970) provides in pertinent part:
4. The District Court cited Military Selective Service Act § 10(b)(3), 50 U.S.C.App. § 460(b)(3) (1964 ed., Supp. V), and § 1(c) of the Act, 50 U.S.C.App. § 451(c). See also Military Selective Service Act §§ 5(a)(1), 10(b) (1), 50 U.S.C.App. §§ 455(a)(1) (1964 ed., Supp. V), 460(b)(1).
5. See 18 U.S.C. § 3731:
6. Ibid.:
7. The dissenting opinions would have found jurisdiction wanting in Mersky. 361 U.S., at 444, 453, 80 S.Ct., at 467, 471.
8. It is suggested in dissent that we have jurisdiction because of the language in 50 U.S.C.App. § 460(b)(3) (1964 ed., Supp. V) conferring upon local boards the power 'to hear and determine' claims for exemption and deferment from military service. The record does not indicate that this statutory language was mentioned by the appellee in the District Court, and the court did not rely upon the 'hear and determine' clause in dismissing the indictment. The theory of the dissent was not urged before this Court, perhaps because the parties realized that it can hardly be said that a dismissal of an indictment was 'based upon' a construction of a statutory provision that the District Court never even considered.
9. United States v. Sisson, 399 U.S. 267, 292-293, n. 22, 90 S.Ct. 2117, 2131, 26 L.Ed.2d 608; Note 4 of Advisory Committee to Fed.Rule Crim.Proc. 54(c), reprinted following Fed.Rule Crim.Proc. 54, 18 U.S.C.App.
10. United States v. Sisson, 399 U.S., at 300 and nn. 53-54, 90 S.Ct., at 2135.
11. 41 Cong.Rec. 2753.
12. Only two cases appear difficult to reconcile with the test adopted in text, and these are of dubious parentage. In United States v. Covington, 395 U.S. 57, 89 S.Ct. 1559, 23 L.Ed.2d 94, and United States v. Murdock, 284 U.S. 141, 52 S.Ct. 63, 76 L.Ed. 210, defendants were being prosecuted for refusals to answer which they justified on grounds of Fifth Amendment privilege. Murdock itself, however, said that the plea was not appropriately presented as one in bar. 284 U.S., at 151, 52 S.Ct., at 65. In Covington, we cited Murdock in assuming jurisdiction. 395 U.S., at 59 n. 2, 89 S.Ct., at 1560.