UNITED STATES of America, Plaintiff-Appellant, v. Richard Victor PONTO, Defendant-Appellee; UNITED STATES of America, Plaintiff-Appellant, v. Raymond J. GROCHOWSKI, Defendant-Appellee, 454 F.2d 657

KERNER, Circuit Judge. A. United States of America v. Richard Victor Ponto The defendant, Richard Ponto, was indicted for refusing to submit to induetion into the Armed Forces. 50 U.S.C. App. § 462. Prior to trial, the district court granted the defendant’s motion “to dismiss the indictment or for a directed judgment of acquittal.” The government appealed. A three-judge panel of this court, one judge dissenting, ruled that the government did not possess the authority to appeal under 18 U.S.C. § 3731 and dismissed the case for lack of appellate jurisdiction. United States v. Ponto, 454 F.2d 647 (7th Cir. 1971).

Subsequently, the government’s petition for a rehearing en banc was granted. Upon consideration by the entire court, we affirm the panel’s opinion that the government is barred from appeal and dismiss the appeal for lack of jurisdiction. The facts of the case were adequately stated in the panel’s opinion, United States v. Ponto, swpra, and we shall avoid unnecessary repetition. The issue reargued en banc concerned the

interpretation of the portion of 18 U.S.C. § 3731, which provides: 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 where a direct appeal to the Supreme Court of the United States is provided by this section. I.

The panel in Ponto held that this portion of § 3731 permits a government appeal to this court only when the dismissal of a criminal case by a district court is based on a defect in the indictment or information, or in the institution of the prosecution. For this holding, the panel relied heavily on an en banc decision of the Ninth Circuit, United States v. Apex Distributing Co., 270 F.2d 747 (9th Cir. 1959). In Apex, the Ninth Circuit, after an exhaustive exposition of the legislative history of § 3731, concluded, as we do here, that paragraph 6 reached some, but not all, orders dismissing indictments.

To understand the meaning of § 3731, a short review of the Act’s legislative history is in order. Prior to 1907, the government had no right to appeal from any criminal case. In 1907, Congress permitted appeal by the government to the Supreme Court in certain narrowly defined instances. No government appeal was permitted to a court of appeals. 34 Stat. 1246. United States v. Sisson, 399 U.S. 267, 294, 90 S.Ct. 2117, 26 L.Ed. 2d 608 (1970); Carroll v. United States, 354 U.S. 394, 402 n. 11, 77 S.Ct. 1332, 1 L.Ed.2d 1442 (1957).

In 1942, Congress permitted the government to appeal to the court of appeals “[f]rom a decision or judgment quashing, setting aside, or sustaining a demurrer or plea in abatement to any indictment or information, . . ..” Act of May 9, 1942, c. 295, § 1, 56 Stat. 271, codified as former 18 U.S.C. § 682 (1946 ed.).

The Report of the Judiciary Committee explained the purpose of this provision: . . . your committee feels that the Government should have the right to appeal to the circuit court of appeals from the district court from decisions on demurrers or pleas in abatement to indictments or informations in cases involving the sufficiency of the allegations in the indictments or informa-tions in the same manner in which the Government may now appeal from decisions or demurrers to indictments direct to the Supreme Court in those cases involving the invalidity of a statute or the construction of a statute.

U.S.Code Cong.Serv. 77th Cong., 2d Sess. 1942, pp. 487-88. The 1942 provision, then, permitted government appeal from a decision responsive to a demurrer or plea in abatement to the indictment. Under common law, a demurrer was raised by a criminal defendant to question the legal sufficiency of the indictment. 2 Orfield, Criminal Procedure Under the Federal Rules, §§ 12.9, 12.10, 12.15 (1966 ed.); Clark, Handbook of the Law of Code Pleading, 501-07 (1947). A plea in abatement attacked the indictment for reasons not apparent on the face of the indictment. Orfield at § 12.8.

It was “ . . .an appropriate means of raising objections to an indictment which may involve serious and prejudicial infringements of procedural rights, such as an objection to the qualifications of grand jurors ... to the method of selection of the grand jury ... or its composition. . . . ” See United States v. Janitz, 161 F.2d 19, 21 (3d Cir. 1947); United States v. Rintelen, 235 F. 787, 788 (D.C., S.D.N.Y.1916). Misnomer of the defendant in the indictment was also grounds for the plea. United States v. Apex Distributing Co., supra, 270 F.2d at 753.

The crucial characteristic of pleas in abatement was that they attacked the indictment by proof of extrinsic facts. At any rate, by 1942, demurrers and pleas in abatement encompassed motions attacking an indictment on its face or the institution of the prosecution leading up to the issuance of an indictment. United States v. Janitz, supra. In 1946, the Federal Rules of Criminal Procedure abolished the use of common law procedures such as a demurrer and plea in abatement and substituted in their place the motion to dismiss the indictment under Rule 12, Fed.R.Crim.P.

At the same time, the Advisory Committee on the Rules explained that the government’s right to appeal should not be affected by the change in terminology. Notes of Advisory Committee on Rules, Note to Rule 54(c), 18 U.S.C. p. 506. Rule 54(

c) was enacted to provide that common law pleading terms, including demurrer and plea in abatement, which appear in Acts of Congress “shall be construed to mean the motion raising a defense or objection provided in Rule 12.” Rule 54(c), Fed.R.Crim.P. In 1948, Congress amended § 3731 and for demurrers and pleas in abatement as a basis for government appeal to the court of appeals, substituted the words “decision or judgment setting aside, or dismissing any indictment or information.” 18 U.S.C. § 3731, ¶ 6.

The change in wording was made to conform the terminology of the Act with the 1946 modernization in the Federal Rules of Criminal Procedure. No enlargement of the government’s right to appeal was intended. United States v. Sisson, supra, 399 U.S. at 292-293, n. 22, 90 S.Ct. 2117; United States v. Pack, 247 F.2d 168 (3d Cir. 1957). Thus, the government, under the 1948 legislation, could appeal under jf 6 from dismissals of indictments under Rule 12 which would have been cognizable in legal basis as orders responsive to demurrers or pleas in abatement at common law.

And, as indicated earlier, these common law pleas were limited to objections to the wording in the indictment or to the proceedings culminating in the issuance of the indictment. The Ninth Circuit reached this very same conclusion in Apex, when it held that the government could appeal from an order dismissing the case because of a defect in the indictment or institution of the prosecution. United States v. Apex Distributing Co., supra, 270 F.2d at 755. The Third Circuit relied on the same principle in United States v. Pack, supra, as did the First Circuit in United States v.

Nardolillo, 252 F.2d 755 (1st Cir. 1958), and United States v. Findley, 439 F.2d 970 (1st Cir. 1971). Apex was cited with approval in Mann v. United States, 113 App.D.C. 27, 304 F.2d 394, 395, n. 1 (1962). The Supreme Court has given implicit recognition to this

interpretation of § 3731. In Sisson, the Court, citing Apex, noted that no substantive changes in the 1942 Act were intended in the 1948 amendments, United States v. Sisson, supra, 399 U.S. at 292-293, n. 22, 90 S.Ct. 2117. The Court stated, in analyzing appealability in United States v. Fruehauf, 365 U.S. 146, 157, 81 S.Ct. 547, 554, 5 L.Ed.2d 476 (1961): “Nor does the record raise questions concerning the sufficiency of the indictment which would require, in an appropriate case, that the case be sent to the Court of Appeals, pursuant to 18 U.S.C. § 3731.” Apex was also cited in Will v.

United States, 389 U.S. 90, 97, n. 5, 88 S.Ct. 269, 19 L.Ed.2d 305 (1967). We are thus convinced that the rule in Apex is a sound

interpretation of jf 6 of § 3731. The government contends that this court should interpret j[ 6 according to the plain meaning of the words in the provision. See Judge Pope’s concurring opinion in Apex, 270 F.2d at 759-762. Resort to legislative history and intent, it is argued, is proper only when the wording of a statute is ambiguous on its face and when that analysis will remove the ambiguity. This doctrine of statutory

interpretation has been rejected by the Supreme Court, however, in a case involving construction of § 3731: It is axiomatic, as a matter of history as well as doctrine, that the existence of appellate jurisdiction in a specific federal court over a given type of case is dependent upon authority expressly conferred by statute.

And since the jurisdictional statute prevailing at any given time are so much a product of the whole history of both growth and limitation of federal-court jurisdiction since the First Judiciary Act, 1 Stat. 73, they have always been interpreted in light of that history and of the axiom that clear statutory mandate must exist to found jurisdiction. Carroll v. United States, 354 U.S. 394, 399, 77 S.Ct. 1332, 1336, 1 L.Ed.2d 1442 (1957). Appealability under § 3731 is dependent upon an appellate court’s characterization in common law pleading terms of the legal basis of the district court’s ruling.

The Supreme Court, in analyzing another part of § 3731, which allows appeal from a decision “arresting a judgment of conviction,” . explained that: In using that phrase in the Criminal Appeals Act, Congress did not, of course, invent a new procedural classification. Instead, Congress acted against a common-law background that gave the statutory phrase a well-defined and limited meaning. United States v. Sisson, supra, 399 U.S. at 280, 90 S.Ct. at 2125. The Court then reviewed the development of the statutory phrase under consideration from its common-law usage through its inclusion by Congress in § 3731.

This same approach was also utilized by the Supreme Court in two other recent § 3731 cases, United States v. Weller, 401 U.S. 254, 91 S.Ct. 602, 28 L.Ed.2d 26 (1971), and United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971). Such has been the analysis in most cases dealing with § 3731. See, for example, Judge Learned Hand’s discussion in United States v. Zisblatt, 172 F.2d 740, 742 (2d Cir. 1949) (“The Criminal Appeals Act spoke to the law, as it then was.”). Another

interpretation of |f 6 urged upon us and mentioned by Judge Stevens in his dissent to the panel’s opinion in Ponto, supra, 454 F.2d 647 at 655, is that we should examine the effect of a dismissal order rather than the reasons for its entry. This view finds support in one portion of the 1942 Committee Report, supra, The bill would . . . [p]ermit appeals to the circuit court of appeals from all decisions and judgments having the effect of quashing, setting aside, or sustaining demurrers or pleas in abatement to indictments or informations. .

It is claimed that Congress intended, by this statement, to allow the government to appeal from all pre-trial dismissal orders in which the end result — the actual “effect” of the ruling — is the dismissal of the indictment. Such an

interpretation would include virtually all dismissals prior to trial since most pre-trial orders dismissing the action do so by dismissing the indictment under Rule 12 of the Federal Rules of Criminal Procedure. United States v. Heath, 260 F.2d 623, 628 (9th Cir. 1958); United States v. Apex Distributing Co., supra, 270 F.2d at 751 (“The dismissal of a criminal action inescapably sets aside or dismisses the indictment or information on which it is based.”). We do not believe such a broad reading was intended by Congress.

The 1942 Report, as quoted supra, states that the enactment would limit the right of appeal to dismissal orders “involving the sufficiency of the allegations in the indictment or information” when raised by demurrer or plea in abatement. The extraction of the phrase, “having an effect,” from the 1942 Committee Report does not necessitate a contrary conclusion. Further, such a broad reading of the words in § 3731 would violate the long standing principle that the Act should be strictly construed against the government’s right to appeal. United States v.

Sisson, supra, 399 U.S. at 270, 286, 291, 90 S.Ct. 2117; Carroll v. United States, supra, 354 U.S. at 394, 400, 406; United States v. Borden Co., 308 U.S. 188, 192, 60 S.Ct. 182, 84 L.Ed. 181 (1939). In addition, we rely on the Supreme Court’s statement with respect to § 3731: “While it is always necessary to categorize a situation realistically, to place a given order according to its real effect, it remains true that the categories themselves were defined by the Congress in terms of form.” Carroll v. United States, supra, 354 U.S. at 406, 77 S.Ct. at 1339.

Thus, “ . . . in a limited sense, form is substance with respect to ascertaining the existence of appellate jurisdiction.” Id. As in Apex, we must examine the legal basis of the dismissal order rather than its end result to determine whether it is included within the restricted

definitions in § 3731. Applying the standard of appeal-ability we have enunciated to the facts in this case, we find that the dismissal order was not based on a defect in the wording of the indictment or in the institution of the prosecution. There was no contention below that the indictment was fatally insufficient or that the proceedings culminating in the issuance of the indictment were faulty in any way. Rather, the judge seemed to be disturbed about the draft board’s procedures in classifying Ponto I-A. His comments prior to his ruling on the motion to dismiss focused on these considerations.

The alternatively titled motion to dismiss the action dealt with Ponto’s classification and the actions of the draft board, and was not an attack against the indictment itself. II. An objection to the local board’s classification of a registrant can be raised as a defense to a prosecution under 50 U.S.C. App. § 462. The Selective Service Act, 50 U.S.C. App. § 460(b) (3), provides that all questions relating to judicial review of the classification and processing by a board be reviewed in this manner.

The motion in the instant case presented questions concerning Ponto’s classification, which are raised only by defense. The decision to' dismiss by the district judge was based on questions presented by this defense. As such, it was a ruling on the merits of} the defense. The panel in Ponto decided that the order was in the nature of an acquittal, i. e., a ruling on the merits by which the defendant was discharged from prosecution. See Pratt v. United States, 70 App.D.C. 7, 102 F.2d 275, 279 (1939).

Upon reconsideration, we conclude that the ruling below was, in fact, an acquittal, and for this reason, appeal by the government is prohibited by the double jeopardy clause of the Fifth Amendment. The defense raised by the motion below could have been decided at trial. See United States v. Ramos, 413 F.2d 743, 744, n. 1 (1st Cir. 1969). Yet, a defense on the merits can likewise be decided prior to trial, as it was here.

Rule 12(b) (1) of the Federal Rules of Criminal Procedure allows a party to present prior to trial a motion to dismiss on a defense “which is capable of determination without trial of the general issue. . . .” See United States v. Covington, 395 U.S. 57, 60, 89 S.Ct. 1559, 23 L.Ed.2d 94 (1969); United States v. Fargas, 267 F.Supp. 452, 455 (S.D.N.Y. 1967). We believe that the motion ruled upon by the court below fits into this category. The validity of a classification involves questions of law for the judge, as in any judicial review of administrative decision-making. United States v.

Ramos, supra, 413 F.2d at 744-745, n. 1; Martinetto v. United States, 391 F.2d 346, 347 (9th Cir. 1968). The jury is to determine whether, in fact, the defendant refused to submit to induction. Questions involving the validity of the defendant’s classification do not come before it. For this reason, in many cases, a ruling on the merits of a defense of improper classification could be made by the judge prior to trial when “. trial of the facts surrounding the commission of the alleged offense would be of no assistance in determining the validity of the defense.” United States v.

Covington, supra, 395 U.S. at 60, 89 S. Ct. at 1561. We find that the pre-trial motion presented to the judge in this case was of such a character. Since the dismissal order was based on a determination on the merits, it was an acquittal to which jeopardy attached. United States v. Sisson, supra, 399 U.S. at 289-290, 90 S.Ct. 2117; United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896); Green v. United States, 355 U.S. 184, 78 S.Ct. 221, 2 L.Ed.2d 199 (1957); Helvering v. Mitchell, 303 U.S. 391, 398, 58 S.Ct. 630, 82 L.Ed. 917 (1938). See United States v.

Jorn, 400 U.S. 470, 479, 91 S.Ct. 547, 27 L.Ed.2d 543 (1971). Thus, government appeal from this ruling would violate the double jeopardy clause of the Fifth Amendment since a retrial on the charge would be prohibited. Kepner v. United States, 195 U.S. 100, 24 S.Ct. 797, 49 L.Ed. 114 (1904); United States v. Ball, supra. We view this as an independent ground for holding that the government may not appeal in this case. For the reasons we have stated, we dismiss this appeal for lack of jurisdiction. B. United States of America v. Raymond J. Grochowski The defendant, Raymond J.

Grochow-ski, was indicted for refusing to submit to induction into the Armed Forces, 50 U.S.C. App. § 462. Prior to trial, the district court dismissed the indictment because the defendant, claiming to be a conscientious objector, had not presented his conscientious objector (I-

O) claim to his local draft board. In dismissing the action, the judge remanded the case to the board to give the defendant an opportunity to present his 1-0 claim. The government appealed this dismissal order. A three-judge panel of this court ruled that the government was barred under 18 U.S.C. § 3731 from appealing the dismissal order to this court or the United States Supreme Court. United States v. Grochowski, 454 F.2d 655 (7th Cir. 1971). Subsequently, the government’s petition for rehearing en banc was granted.

Upon consideration by the entire court, we affirm the panel’s opinion that the government is barred from appeal, and dismiss for lack of jurisdiction. I. The dismissal order was not based on any defect in the indictment or institution of the prosecution. The judge’s order addressed itself to the classification of the defendant and was intended to allow the defendant to raise his 1-0 claim before his local board. These matters are raised by defense and not by objections to the sufficiency of the indictment or institution of the prosecution. Consequently, the government may not appeal under § 3731. II.

We also believe that the order below was an acquittal and thus appeal is prohibited by the double jeopardy clause of the Fifth Amendment. The ruling that the defendant did not present a written request for an 1-0 reclassification addressed itself, however erroneously, to the classification process. As such, it was a decision on the merits of a defense which could have been raised at trial, but which was capable of determination prior to trial under Rule 12(b) (1) of the Federal Rules of Criminal Procedure. Jeopardy attached to the ruling, and the government is thus prohibited from an appeal.

The decision of the three-judge panel is affirmed. This appeal is dismissed for lack of jurisdiction. Appeals dismissed. Nos. 18396, 18874 . The Act lias been amended in the Omnibus Crime Control Act of 1970, § 14(a), 84 Stat. 1890 (1971). The new provisions apply to indictments issued after January 2, 1971. Ponto was indicted in 1909. . This case was consolidated for oral argument along with a rehearing of United States v. Grochowski, 454 F.2d 655 (7th Cir. 1971), and the original hearing in United States v. Gustavson, 7th Cir., 454 F.2d 667. All cases involved the same jurisdictional question under § 3731. .

The panel in Ponto also decided that the order of the district court could not be appealed to the Supreme Court under the “motion in bar’’ provision of § 3731. Ponto, 454 F.2d at p. 651. Since the government’s petition for rehearing did not contest this ground and since it was not argued at the rehearing en banc, we do not deem it necessary to reconsider it here. .

The 1907 Act allowed the United States to appeal: From a decision or judgment quashing, setting aside, or sustaining a demurrer to, any indictment, or any count thereof, where such decision or judgment is based upon the invalidity, or construction of the statute upon which the indictment is founded. From a decision arresting a judgment of conviction for insufficiency of the indictment, where such decision is based upon the invalidity or construction of the statute upon which the indictment is founded.

From the decision or judgment sustaining a special plea in bar, when the defendant has not been put in jeopardy. . We reject the argument that the remand order in United States v. Weller, 401 U.S. 254, 91 S.Ct. 602, 28 L.Ed.2d 26 (1971), implies a conclusion contrary to that stated in Ape®. See the panel’s analysis in United States v. Ponto, supra, 454 F.2d at 653, n. 6. . Congress has implicitly conceded that the

interpretation of the 1948 Act according to common-law and legislative history was necessary. In discussing the changes in the 1970 enactment of § 3731, Congress stated: “Technical distinctions in pleadings as limitations on appeals by the United States were eliminated. . ” 3 U.S.Code Cong, and Admin. News (1970), 91st Cong., 2d Sess., at pp. 5848-49. This statement suggests that prior to the 1970 Act, Congress intended that § 3731 be interpreted in light of technical distinctions in common law pleading. .

We note that the legislative history of the 1970 version of § 3731 states: Technical distinctions in pleadings as limitations on appeals by the United States were eliminated and in their place the Government was authorized to appeal any decision or order terminating a prosecution except an acquittal. 3 U.S.Code Cong. & Admin.News (1970), supra, at p. 5848. This explanation by Congress in 1970 implies that in 1942 and 1948 it did not authorize an appeal from any pretrial order terminating a prosecution (except an acquittal) which has the effect of dismissing the indictment. .

That the judge did not review the contents of Ponto’s selective service file does not change the eharactelr of his ruling. Ilis failure to review 1 he file may he erroneous, but it does not create appellate jurisdiction. See United States v. Sisson, supra, 399 U.S. at 295, 90 S.Ct. 2117, 26 L.Ed.2d 608. . Double jeopardy considerations enter into the legislative history of § 3731. United States v. Sisson, supra, at 298-299, 305, 90 S.Ct. 2117. The Act limited government appeal in those situations where retrial was permissible under the double jeopardy clause.

As the Court in Sisson stated at 299, 90 S.Ct. at 2134 : “A primary concern of the bill that emerged into law was that no appeal be taken by the Government from an acquittal no matter how erroneous the legal theory underlying the decision.” Congress was mindful of the fact that “[cjriminal appeals by the Government ‘always threaten to offend the policies behind the double-jeopardy prohibition,’ Will v. United States, supra, [389 U.S.] at 96, 88 S.Ct. at 274, even in circumstances where the Constitution itself does not bar retrial.” United States v. Sisson, supra, at 298, 90 S.Ct. at 2134.

The Criminal Appeals Act merely limits government appeal in cases where jeopardy has not attached. “No Senator thought that Congress had the power under the Constitution to provide for an appeal in circumstances in which that would violate the Constitution.” Id. at 305, 90 S.Ct. at 2138. To view the Act as broader would render it unconstitutional. . The government urged at oral argument that we treat this case as a petition for a writ of mandamus. We follow the holding of the Supreme Court in Pong Foo v.

United States, 369 U.S. 141, 82 S.Ct. 671, 7 L.Ed.2d 629 (1962), that a court of appeals possesses no jurisdiction to issue a writ of mandamus after an acquittal. The issuance of the writ would violate the double jeopardy clause. Assuming the double jeopardy clause did not bar appeal in this case, the only possible basis for the issuance of mandamus would be that the actions of the district judge amounted to a clear abuse of power. And oven then, we would be faced with the question of whether mandamus jurisdiction exists when appellate jurisdiction is lacking under § 3731. The Second Circuit in United States v.

Dooling, 406 F.2d 192 (2d Cir. 1969), cert, denied, Persico v. United States, 395 U.S. 911, 89 S.Ct. 1744, 23 L.Ed.2d 224 (1969), reh’g denied, Persico v. United States, 400 U.S. 874, 91 S.Ct. 95, 27 L.Ed.2d 112 (1970), held that a petition for mandamus may be granted even if the government is barred from appeal under § 3731. The Supreme Court indicated in Will v. United States, 389 U.S. 90, at 97, 88 S.Ct. 269, at 274, 19 L.Ed.2d 305 (1967), that mandamus “ . . . may never be employed as a substitute for appeal in derogation” of the policies of § 3731.

These cases suggest that a writ of mandamus may be granted in a ease ostensibly unappealable under § 3731, when the district judge so abuses his authority as to render his decision a nullity. In any event, we believe that the district judge clearly possessed the power to rule on the defense prior to trial under Rule 12, Fed.R.Crim.P., even if his ruling may have been erroneous. In Dooling, the action of the district judge clearly amounted to a judicial usurpation of power. . The panel decided that the “motion in bar” provision of § 3731 was inapplicable.

Since the government’s petition for rehearing did not contest this ground and since it was not argued at the rehearing en banc, we do not deem it necessary to reconsider it here.