(D.C. Criminal No. 15229) APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA.
Van Dusen, Aldisert and Rosenn, Circuit Judges.
This appeal is hopefully one of the last of a long series of selective service cases involving the issue of whether an order to report for induction was invalid for failure of the local board to reopen the registrant's classification pursuant to a post-induction order request for conscientious objector status. Since the district court of the Middle District of Pennsylvania dismissed the indictment, the defendant also raises on appeal the issue of double jeopardy. Because we find the order of dismissal is appealable, and the dismissal was improper in light of the subsequent decision in Musser v. United States, 414 U.S. 31, 94 S. Ct. 196, 38 L. Ed. 2d 190, 42 U.S.L.W. 3286 (1973), we reverse.
The facts of this case are not in dispute. On November 16, 1970, Serfass was ordered by his local board to report for induction on December 1. He appeared on December 1 and requested a delay in his induction in order that he could submit additional medical evidence. The delay was granted, but on December 18 he was again ordered to report for induction, this time on January 18, 1971. On December 29, he visited his local board and requested the form for conscientious objector application, SSS-150. His form 150 was returned to the local board on January 8, and on January 13 he received a courtesy interview as he had requested. By letter dated January 14, the board notified him that it had considered his entire file and "unanimously agreed that there was no change over which you had no control and decided not to re-open your file." The board also informed him that he was still obligated to report for induction on January 18. No other reasons for the refusal to reopen his file were given. On January 18, Serfass appeared at the examining station and refused induction. This prosecution followed under 50 App. U.S.C. § 462.
Before trial, Serfass moved for dismissal of the indictment on the ground that the local board had denied him due process by inadequately setting forth its reasons for denying his request to reopen his classification and to grant him conscientious objector status. The district court granted this motion, relying on defendant's selective service file, his affidavit in support of his motion which set forth that he had applied for conscientious objector status and had received from his local board only the January 14 letter denying his claim, and a stipulation of counsel that the information he sent to the board set forth a prima facie conscientious objector claim based upon late crystallization of beliefs.
On the basis of the law prevailing in this Circuit at that time, the district court stated in its opinion:
The enumerated facts indicate clearly that Serfass is entitled to full consideration of his claim prior to assignment to combatant training and service. Ehlert v. United States, 1971, 402 U.S. 99, 103-04 & n.7, 107, 28 L. Ed. 2d 625, 91 S. Ct. 1319. Therefore, since the statement of reasons given for refusing to reopen is sufficiently ambiguous to be reasonably construed as a rejection on the merits, thereby prejudicing his right to in-service review, defendant's motion to dismiss the indictment will be granted. [Footnotes omitted.]
The footnotes indicate that the court relied primarily upon United States v. Ziskowski, 465 F.2d 480 (3d Cir. 1972), and United States v. Folino, No. 72-1974 (3d Cir. June 29, 1973).
We first consider defendant's contention that we have no jurisdiction to hear this Government appeal from the district court's dismissal of the indictment. Resolution of this contention turns upon our construction of the Criminal Appeals Act, 18 U.S.C. § 3731, which reads:
In a criminal case an appeal by the United States shall lie to a court of appeals from a decision, judgment, or order of a district court dismissing an indictment or information as to any one or more counts, except that no appeal shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution.
The provisions of this section shall be liberally construed to effectuate its purposes.
This version of the Act is applicable to all actions begun in any district court after January 2, 1971, (84 Stat. 1890, 1893) and therefore applies to the present action.
Actions brought prior to January 2, 1971, were governed by an earlier version of the Criminal Appeals Act, the relevant portion of which made a criminal case appealable ...