UNITED STATES of America, Plaintiff-Appellee, v. Kobert D. GOLDEN, Defendant-Appellant, 239 F.2d 877

HINCKS, Circuit Judge. This is an appeal by the defendant from denial of his pre-trial motion to dismiss an indictment which charged that on October 27, 1952 he knowingly and wilfully failed and neglected to report for induction into the armed forces of the United States in violation of 50 U.S.C.A. Appendix, § 462.

The motion below alleged that the court was without jurisdiction in the premises on the following grounds: that on October 27, 1952, the defendant was not a citizen or national of the United States nor a resident alien 'subject to the Universal Military Training & Service Act and not then subject to its jurisdiction; that on October 24, 1952, the defendant had duly renounced his United States citizenship and nationality before the United States Consul at Bangkok, Thailand and thereupon ceased to be a citizen and national of the United States and, as such, subject to the provisions of said Act;, and that for said reasons the grand jury in “making the charges set forth in the indictment herein, acted in error.” These allegations of the motion were supported by an affidavit of the defendant’s attorney which amplified the moti'on as follows: the defendant is a native of the United States who left the United States on July 20, 1952 and has not returned since; before leaving the United States he had duly registered under the Act, offered himself before his draft board for induction into the Armed Services thereof and was not accepted; he left the United States with the necessary permission and notified his draft board of his destination; on August 16, 1952 he arrived in Thailand, entered the University of Bangkok for graduate work therein and has remained in Thailand ever since, The motion, without answer or counter affidavit by the Government, was denied by the judge below in a terse memorandum as follows: “Defendant moves to dismiss the indictment; he resides in Thailand and has not surrendered or been arrested under the indictment.

The defendant may not without surrendering himself, in absentia, contest the validity of the indictment or its sufficiency, “Motion denied.” The appeal was taken directly from this order, We hold that the order appealed from was interlocutory and as such not a “final decision” within^ our appellate jurisdiction as defined in 28 U.S.C.A. § 1291. It was so held in Atlantic Fishermen’s Union v. United States, 1 Cir., 195 F.2d 1021, 1023.

There the defendants, Idee the defendant here, moved in advance of trial to dismiss the indictment for lack °f jurisdiction because the status of the defendants was such that they were not indictable under the Act on which the 'indictments were laid.

The court dismissed the appeal saying: ‘'‘With exceptions in no way ma-terialhere (Title 28 U.S.C.A. § 1292) our appellate jurisdiction is limited by Title 28 U.S.C.A. § 1291 to ‘final decisions’ of the district courts, And ‘A “final decision” generally is one which ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.’ Catlin v. United States, 1945, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911.

Certainly the orders appealed from do not by any stretch of the imagination end the litigation in which they were entered and leave nothing for the court below to do but to execute its judgment. Indeed there is no judgment, but on the contrary the result of the orders is to leave the case standing for answer and eventual trial.” As was said in Gatlin v. United States, 324 U.S. 229, 236, 65 S.Ct. 631, 635: “But denial of a motion to dismiss, even when the motion is based upon jurisdictional grounds, is not immediately reviewable.” See also Berman v.

United States, 302 U.S. 211, 58 S.Ct. 164, 82 L.Ed. 204; Cobbledick v. United States, 309 U.S. 323, 60 S.Ct. 540, 84 L.Ed. 783; Cogen v. United States, 278 U.S. 221, 49 S.Ct. 118, 73 L.Ed. 275; Heike v. United States, 217 U.S. 423, 30 S.Ct. 539, 54 L.Ed. 821; Dowling Bros. Distilling Co. v. United States, 6 Cir., 153 F.2d 353, certiorari denied sub nom. Gould v. United States, 328 U.S. 848, 66 S.Ct. 1120, 90 L.Ed. 1622; United States v. Tiplitz, 3 Cir., 202 F.2d 60. The appellant cites our decisions in Hotch v. United States, 9 Cir., 212 F.2d 280, and United States v.

Hartman, 2 Cir., 209 F.2d 366, as well as various district court decisions in which convictions were set aside on jurisdictional grounds. But these cases are completely irrelevant to the instant case which has not yet gone to judgment and in which, for aught that appears, the defendant may ultimately be acquitted and thus have no cause for appeal. By reply brief the appellant attempts to develop the thesis that the order below is appealable under the “offshoot rule” of Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528. This position is untenable. Parr v.

United States, 351 U.S. 513, 76 S.Ct. 912. Appeal dismissed.