United States v. Mersky/Concurrence Brennan

Mr. Justice BRENNAN, concurring.

I join the opinion of the Court. But I think it plain under our precedents that jurisdiction over this appeal also lies here on the ground that the dismissal was one 'sustaining a motion in bar, when the defendant has not been put in jeopardy.' Except that arguments are made here in dissent which would unsettle what has been settled by our precedents and reintroduce archaisms into federal criminal procedure, I would have refrained from expressing my views.

The touchstone of what constitutes a 'judgment sustaining a motion in bar' is precisely what Judge Lumbard in the Court of Appeals said it was-whether the judgment is one which will end the cause and exculpate the defendant. United States v. Hark, 320 U.S. 531, 536, 64 S.Ct. 359, 362, 88 L.Ed. 290; United States v. Murdock, 284 U.S. 141, 147, 52 S.Ct. 63, 64, 76 L.Ed. 210; United States v. Storrs, 272 U.S. 652, 654, 47 S.Ct. 221, 71 L.Ed. 460. As established by these precedents, the focal point of inquiry is not the form of the defendant's plea, but the effect of the ruling of the District Court. 'The material question is not how the defendant's pleading is styled but the effect of the ruling sought to be reviewed * *  * .' United States v. Hark, supra, 320 U.S. at page 536, 64 S.Ct. at page 361. 'Its (the judgment's) effect, unless reversed, is to bar further prosecution for the offense charged. It follows unquestionably that, without regard to the particular designation or form of the plea or its propriety, this court has jurisdiction under the Criminal Appeals Act.' United States v. Murdock, supra, 284 U.S. at page 147, 52 S.Ct. at page 64. To turn the thrust of these precedents around and focus on the common-law pigeonhole of the defendant's plea would be an anomaly indeed, as is recognized, particularly 15 years after the Federal Rules of Criminal Procedure swept away the old pleas. See Rule 12.

These cases establish criteria for judging the question that are foreign to the technicalities of the old pleas. It is suggested, however, that Justice Holmes' opinion in United States v. Storrs, supra, 272 U.S. at page 654, 47 S.Ct. at page 221, demonstrates that these technicalities still exist. A less selective quotation of his opinion, however, makes it plain that he was referring to one technical touchstone-the very one that Judge Lumbard applied below and which was followed in Murdock and Hark. Storrs involved the dismissal of an indictment for irregularities committed in the grand jury room. The statute of limitations had run at the time of the dismissal so that a new indictment could not be found. But the nature of the Court's action itself was not to exculpate the defendant, as the opinion explained: '(It) cannot be that a plea filed a week earlier is what it purports to be, and in its character is, but a week later becomes a plea in bar because of the extrinsic circumstance that the statute of limitations has run. The plea looks only to abating the indictment not to barring the action. It has no greater effect in any circumstances. If another indictment cannot be brought, that is not because of the judgment on the plea, but is an independent result of a fact having no relation to the plea and working equally whether there was a previous indictment or not. The statute uses technical words, 'a special plea in bar' and we see no reason for not taking them in their technical sense.' 272 U.S. at page 654, 47 S.Ct. at page 221. Clearly the point of the discussion was not whether the plea was by way of 'confession and avoidance' or the like, but whether the judgment on it was in itself an exculpatory one-the announced test that subsequent decisions have followed. There is, then, no inconsistency between Storrs and Hark-both turned on the same basic principle.

Whatever retrospective exegesis of the leading cases now suggests, the one thing reading their own language discloses is that none of them asserts the 'confession and avoidance' rationale now ascribed to them. Rather they were conceived as turning on the rationale that the Court of Appeals explained below. I would adhere to the basic principles of Hark, Murdock and Storrs here, and put the nineteenth century pleading books back on the shelves.

Memorandum of Mr. Justice WHITTAKER.

Although I agree with so much of the dissenting opinions of my Brothers FRANKFURTER and STEWART as concludes that a 'regulation' is not embraced by the term 'statute' as used in the Criminal Appeals Act, 18 U.S.C. § 3731, 18 U.S.C.A. s 3731, I also agree with so much of my Brother BRENNAN'S concurring opinion as would hold that the dismissal was one 'sustaining a motion in bar, when the defendant has not been put in jeopardy,' and hence conclude that we have jurisdiction. On the merits, I join the Court's opinion.

Mr. Justice FRANKFURTER, whom Mr. Justice HARLAN and Mr. Justice STEWART join, dissenting.

The Criminal Appeals Act of 1907, 34 Stat. 1246, c. 2564, provides that in a criminal case an appeal from a District Court '(f)rom 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,' '(f)rom 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,' and '(f)rom the decision or judgment sustaining a special plea in bar, when the defendant has not been put in jeopardy,' cannot be taken by the Government to the Court of Appeals, but must come to this Court directly. In this case the indictment rested upon a regulation of the Secretary of the Treasury, violation of which constitutes an offense under 19 U.S.C. § 1304(e), 19 U.S.C.A. § 1304(e). The District Court decided against the Government, which thereupon appealed to the Court of Appeals. That court certified the case to this Court, 2 Cir., 261 F.2d 40.

The question whether construction of a 'statute,' as that term is used in the Act of 1907, includes construction of a regulation promulgated under a statute is another variant of the recurring problem of resolving an ambiguity of legal language. Here ambiguity inheres not only in the word 'statute' as an English word 'see 'statute,' Oxford English Dictionary), but also in the word 'statute' as a legal term. (Compare the construction of the term 'statute' in two cases decided contemporaneously, King Mfg. Co. v. City Council of Augusta, 1928, 277 U.S. 100, 48 S.Ct. 489, 72 L.Ed. 801, and Ex parte Collins, 1928, 277 U.S. 565, 48 S.Ct. 585, 72 L.Ed. 990. In the former, 'statute' was held to include a city ordinance; in the latter, 'statute' was held to exclude a class of legislative enactments '(d)espite the generality of the language.' 277 U.S. at page 568, 48 S.Ct. at page 586.) Judged by the dictionary, one meaning of 'statute' is of course an enactment made by the legislature of a country. As a matter of English, it may also be respectably used to refer to the enactment of a body subordinate to a legislature or to the governing promulgations of a private body, like a college. Thus the dictionary does not resolve our problem, wholly apart from heeding the admonition, so frequently expressed by Judge Learned Hand, that judges in construing legislation ought not to imprison themselves in the fortress of the dictionary.

The immediately relevant ambiguity of 'statute' as a legal term derives from the fact that it may mean either the enactment of a legislature, technically speaking, that is the Congress of the United States or the respective legislatures of the fifty States; or it may have a more comprehensive scope, to wit, rules of conduct legally emitted by subordinate lawmaking agencies such as city councils or the various regulation-emitting bodies of the federal and state governments. Accordingly, whether the term 'statute,' as used in the Criminal Appeals Act of 1907, should be given the restrictive meaning, i.e., enactments by Congress, or the more extensive meaning, i.e., Treasury regulations, cannot be determined merely by reading the Criminal Appeals Act of 1907. The answer will turn on the total relevant environment into which that Act must be placed, including past relevant decisions, the legislative history of the Act, and due regard for the consequences resulting from a restrictive as against a latitudinarian construction.

For the problem in hand, there is no controlling authority in this Court nor are there decisions under other statutes helpful for decision; neither is there a body of practice reflected in lower court decisions over a sufficient period of time, unchallenged here, carrying the weight of professional understanding. The case, therefore, must be decided on the balance of considerations weighed here for the first time.

The origin of the legislation and the legislative history of its enactment leave no doubt as to the direction of its aim. Between the decision of this Court in United States v. Sanges, 1892, 144 U.S. 310, 12 S.Ct. 609, 36 L.Ed. 445, and the enactment of the Criminal Appeals Act, the United States had no appellate remedy in criminal cases. (See the story as summarized in United States v. Dickinson, 213 U.S. 92, 29 S.Ct. 485, 53 L.Ed. 711.) This 'left all federal criminal legislation at the mercy of single judges in the district and circuit courts. This defect became all the more serious because it became operative just at the beginning of the movement for increasing social control through criminal machinery.' Frankfurter and Landis, The Business of the Supreme Court (1928), p. 114. Attorneys General had, since 1892, been emphasizing the need for the legislation which became the 1907 Act. See, id., pp. 114-115. Attorney General (later Mr. Justice) Moody in 1906 put the situation to be remedied in these terms: 'It is monstrous that a law which has received the assent of the Senate, the House of Representatives, and the President can be nullified by the opinion of a single man, not subject to review by the court of appeals and the Supreme Court.' Atty.Gen.Ann.Rep. 4 (1906).

The particular incident which precipitated the legislation was the Beef-Trust case, United States v. Armour & Co., D.C.1906, 142 F. 808, where a plea in bar, in its technical sense, was sustained, thereby finally ending a Sherman Law, 15 U.S.C.A. § 1 et seq. prosecution in which President Theodore Roosevelt was much interested. In his message to the Congress which eventually enacted the Act of 1907 the President thus expressed the need for legislation: 'It seems an absurdity to permit a single district judge, against what may be the judgment of the immense majority of his colleagues on the bench, to declare a law solemnly enacted by the Congress to be 'unconstitutional,' and then to deny to the Government the right to have the Supreme Court definitely decide the question.' 41 Cong.Rec. 22. The concern of those in charge of the bill throughout the debate upon the measure in the Senate, in which alone there was full discussion, was to afford the Government appellate review when a single judge had frustrated the formally expressed will of Congress.

The legislative history gives no hint of any concern over misconstruction or invalidation of regulations to which statutes might give rise. Regulations were not mentioned. It is significant, however, that the measure which ultimately became law was one deliberately narrower in scope than that originally proposed in the Congress. The legislation originated in the House, which, in the first session of the 59th Congress, passed a bill giving the United States in all criminal prosecutions 'the same right of review by writ of error that is given to the defendant' provided that the defendant not be twice put in jeopardy for the same offense. 40 Cong.Rec. 5408. In the Senate, a less general measure, in the nature of a substitute for the House bill, was reported, giving the United States the right to take a writ of error from decisions or judgments 'quashing or setting aside an indictment * *  * sustaining a demurrer to an indictment *  *  * arresting a judgment of conviction for insufficiency of the indictment *  *  * (or) sustaining a special plea in bar *  *  * .' 40 Cong.Rec. 7589-7590; S.Rep. No. 3922, 59th Cong., 1st Sess. This bill went over in the Senate to the second session of the 59th Congress. The chief objection to it was its breadth. Although it was amended to provide expressly for protection against double jeopardy, 41 Cong.Rec. 2819, Senators objected to any unnecessary extension of the number of situations in which defendants might, contrary to what had been the practice, be subjected to government appeals in criminal cases. E.g., 41 Cong.Rec. 2192-2194, 2819.

In response to this objection, Senator Clarke introduced a substitute bill providing only three categories of cases in which the Government would be allowed to appeal: 'From a decision or judgment quashing, setting aside, or sustaining a demurrer to any indictment or any count thereof where the ground for such motion or demurrer is 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 the ground for the insufficiency thereof is the invalidity or construction of the statute upon which the same is founded'; 'From the decision or judgment sustaining a special plea in bar, when the defendant has not been put in jeopardy.' 41 Cong.Rec. 2823. The Clarke substitute, passed by the Senate (41 Cong.Rec. 2825), was substantially adopted in its relevant aspects by the House (see H.R.Rep. No. 8113, 59th Cong., 2d Sess.) and eventually became the Act of 1907. 41 Cong.Rec. 3994, 4128. In explaining the reason for his amendment, Senator Clarke stressed the aim not to have the scope of the legislation greater than necessary: '(T)he object * *  * is to limit the right of appeal upon the part of the General Government to the validity or constitutionality of the statute in which the prosecution is proceeding. It has been enlarged by the addition of another clause, which gives the right of appeal where the construction by the trial court is such as to decide that there is no offense committed, notwithstanding the validity of the statute, and in other respects the proceeding may remain intact. * *  * A case recently occurring has drawn attention to the fact that if a circuit judge or a district judge holding the circuit should determine that a statute of Congress was invalid, the United States is without means of having that matter submitted to a tribunal that under the Constitution has power to settle that question. I do not believe the remedy ought to be any wider than the mischief that has been disclosed.' 41 Cong.Rec. 2819.

It is manifest that the preoccupying thought of the primary promoter of the legislation, President Roosevelt, and of Congress, was to bar a single judge from destroying, either by way of construction or invalidation, congressional enactments. Extension of the range of the meaning of 'statute' to include regulations to which penal consequences attach was apparently nobody's thought and certainly on nobody's tongue. This was at a time when the proliferation of regulations was not an unknown phenomenon in lawmaking. It is certainly not fictional to attribute to the preponderant profession represented in Congress knowledge of the elementary difference between statutes, conventionally speaking, and regulations authorized by statutes. Nor is this a formal or minor distinction. It is one thing to strike down a statute, or to eviscerate its meaning; it is quite another thing to construe a regulation adversely to the Government's desire. Legislation is complicated and cumber-some business. Correction of erroneous statutory construction, let alone invalidation of laws, is a difficult, even a hazardous process. Regulations are the products of officials unhobbled by legislative procedure with its potential opportunity for parliamentary roadblocking. In large measure, these officials have the means of self-help for correcting judicial misconception about a regulation.

Such being the practical differences between dealing with regulations and dealing with the laws of Congress as such, what is the bearing of these practical differences upon our duty of construing the term 'statute' in order to decide whether the right of direct appeal to this Court should be restricted to cases construing the formal enactments of Congress, or whether it should include cases construing regulations referable to such enactments? The answer to this question introduces a factor of weighty importance in deciding whether cases are required to be brought here in the first instance or may be brought here only by leave after adjudication by a Court of Appeals. That factor concerns due regard for the responsibility of this Court in relation to the judicial business of major public importance and the conditions necessary for its wise disposition.

On more than one occasion this Court has given controlling consideration to the fact that by a latitudinarian construction of jurisdictional legislation the business of this Court would be 'largely and irrationally increased.' American Security & Trust Co. v. Commissioners, 224 U.S. 491, 495, 32 S.Ct. 553, 554, 56 L.Ed. 856. Since the merely abstractly logical arguments permit 'statute' to be construed in either a restrictive or a broad sense, that is, that appeals to this Court directly from an adjudication of a District Court under the Criminal Appeals Act may appropriately be confined to rulings under a statute as such, rather than to include interpretations of regulations arising under a statute, I not only feel free, but deem it incumbent, to oppose what is certainly a needless if not an irrational increase in the class of cases which can be brought directly to this Court from the District Courts. I would deny the right of the Government to appeal here every time one of the vast number of regulations to which penalties are attached is construed to its disfavor. I would leave the Government to revise its regulation, as so often can easily and effectively be accomplished by skillful drafting, to bring it within statutory authority, or to go to a Court of Appeals for review.

The presence in the Criminal Appeals Act of 1907 of the provision for an appeal by the Government from decisions or judgments sustaining a 'special plea in bar' when the defendant has not been put in jeopardy, has an historical explanation and its scope presents a different problem of statutory construction than that of giving meaning to 'statute.' Barring stimulation by this Court, Congress seldom initiates judiciary legislation except when a dramatic case stirs public interest. Such was the Beef-Trust case, United States v. Armour & Co., D.C., 142 F. 808. In that case, because of the then absence of the Government's right of appeal in a criminal case, the Government's antitrust prosecution was finally terminated by a successful plea in bar in the District Court. The Congress was determined not to permit a recurrence of that situation, and thus the inclusion in the Act of 1907 of a clause permitting appeals by the Government from decisions sustaining a 'special plea in bar' is easily accounted for.

Regarding the meaning of this clause, I agree with the opinion of my Brother STEWART. When Congress uses technical legal language the Court disregards the obvious guidance to meaning if it departs from its technical legal connotation. There have been two cases before the Court dealing with the matter, between which we have to choose: United States v. Storrs, 272 U.S. 652, 47 S.Ct. 221, 71 L.Ed. 460, and United States v. Hark, 320 U.S. 531, 64 S.Ct. 359, 88 L.Ed. 290. In Storrs Mr. Justice Holmes, as spokesman for the Court, applied his authoritative learning of the common law to take 'technical words' 'in their technical sense.' In Hark, the Court did not notice the Storrs analysis and gave a colloquial meaning to the phrase. Having to choose between these two decisions, I follow Storrs because it applied the appropriate criterion of construction.

Mr. Justice STEWART, whom Mr. Justice FRANKFURTER and Mr. Justice HARLAN join, dissenting.

I do not reach the merits of this case, because I think the District Court's judgment was not of a kind which the Criminal Appeals Act makes directly reviewable by this Court. It seems clear to me that the dismissal of the information was not 'based upon the invalidity or construction of the statute,' and equally clear that the judgment was not one 'sustaining a motion in bar.'

The District Court's decision was based solely upon the interpretation of Treasury regulations, not upon the invalidity or construction of an Act of Congress. The court found it doubtful that the regulations in question were issued to implement the country-of-origin marking requirements of 19 U.S.C. § 1304, 19 U.S.C.A. § 1304, and held that in any event the intent of the regulations was not sufficiently unambiguous to support a criminal prosecution. No contention was made that the statute itself was invalid. The trial court did not question that the statute validly and clearly confers power upon the Secretary of the Treasury to issue a properly worded regulation making the acts of the appellees unlawful. This is made apparent by the district judge's statement that '(t)he Secretary could very easily have indicated that East and West Germany should be considered two separate countries for all purposes within the jurisdiction of the Treasury Department * *  * .' Thus the decision we are asked to review in no way impinges upon or construes the legislation which Congress enacted. Compare United States v. Foster, 233 U.S. 515, 522-523, 34 S.Ct. 666, 669, 58 L.Ed. 1074.

Whether under the Criminal Appeals Act an appeal from an order of dismissal based upon a District Court's construction of an administrative regulation may be brought directly here is a question which apparently has not been considered until now. The Court's resolution of the question seems to me at odds with the tradition of strick construction of the Criminal Appeals Act and contrary to the policy, reflected notably in the Act of February 13, 1925, 43 Stat. 936, of narrowly limiting the appellate jurisdiction of this Court. 'The exceptional right of appeal given to the Government by the Criminal Appeals Act is strictly limited to the instances specified.' United States v. Borden Co., 308 U.S. 188, 192, 60 S.Ct. 182, 185, 84 L.Ed. 181. See United States v. Dickinson, 213 U.S. 92, 103, 29 S.Ct. 485, 489, 53 L.Ed. 711.

Avoidance of prolonged uncertainty as to the validity or meaning of a federal criminal law is obviously a desideratum in the effective administration of justice. Moreover, it is clearly desirable to bring to the attention of Congress as promptly as possible any occasion for legislative clarification or amendment. When a District Court holds a criminal statute invalid or gives it a construction inconsistent with the understanding of those in the Executive Branch charged with enforcing it, this policy is well served by expediting ultimate determination of the matter. But expedited review of the judgment in the present case serves no such policy. Uncertainty caused by the District Court's decision in this case could have been laid to rest at any time simply by issuance of a clearly worded Treasury regulation.

For these reasons I would hold that an administrative regulation such as is here involved is not a 'statute' within the meaning of this provision of the Criminal Appeals Act.

Even if the above views should prevail, the Court would still have jurisdiction of this appeal if the District Court's judgment was one 'sustaining a motion in bar, when the defendant has not been put in jeopardy.' The motion which the court sustained was for an order dismissing the information 'on the ground that it does not state facts sufficient to constitute an offense against The United States.' I think such a pleading is not 'a motion in bar.' Until 1948 the Criminal Appeals Act provided for direct appeal to this Court from a 'decision or judgment sustaining a special plea in bar, when the defendant has not been put in jeopardy.' In 1948 the phrase 'motion in bar' was substituted for 'special plea in bar.' 62 Stat. 845. The sole purpose of the change was to bring the terminology of the Criminal Appeals Act into conformity with Rule 12 of the Federal Rules of Criminal Procedure, 18 U.S.C.A., which abolished special pleas, demurrers and motions to quash as such, and substituted motions to dismiss or to grant appropriate relief. The statutory revision was not intended to, and did not, expand the Government's right of appeal. See H.R.Rep. No. 304, 80th Cong., 1st Sess. A-177. That right is still limited to a judgment sustaining a motion of a kind historically considered a 'special plea in bar.'

The label which the defendant may have attached to his pleading is of no great importance in this connection. United States v. Oppenheimer, 242 U.S. 85, 86, 37 S.Ct. 68, 61 L.Ed. 161; United States v. Goldman, 277 U.S. 229, 236, 48 S.Ct. 486, 488, 72 L.Ed. 862. As Mr. Justice Holmes remarked in United States v. Storrs, 272 U.S. 652, 654, 47 S.Ct. 221, 71 L.Ed. 460 '(t)he question is less what it is called than what it is.' But, in deciding 'what it is,' the Court's opinion in Storrs underscores the essential point-'The statute uses technical words, 'a psecial plea in bar' and we see no reason for not taking them in their technical sense.' 272 U.S. at page 654, 47 S.Ct. at page 221.

At common law, a plea in bar had to either 'deny, or confess and avoid the facts stated in the declaration.' 1 Chitty, Pleading (16th Am. ed. 1883), * 551; Stephen, Principles of Pleading (3d Am. ed. 1895), 89. Consequently, there were two types of pleas in bar pleas by way of traverse and pleas by way of confession and avoidance. Ibid. Shipman, Common-Law Pleading (Ballantine ed. 1923), 30. When a plea in bar was a plea other than the general issue, it was a 'special plea in bar.' Shipmen, supra, at 337; Stephen, supra, at 179. In civil cases pleas of this category included the specific traverse (equivalent to a special denial), the special traverse (a denial preceded by introductory affirmative matter), and the plea of confession and avoidance. In criminal cases special pleas in bar were primarily utilized by way of confession and avoidance, e.g., autrefois acquit, autrefois convict, and pardon. 2 Bishop, New Criminal Procedure (2d ed. 1913), §§ 742, 805-818; Heard, Criminal Pleading (1879), 279-296; 1 Starkie, Criminal Pleading (2d ed. 1822), 316-338. The plea in confession and avoidance did not contest the facts alleged in the declaration, but relied on new matter which would deprive those facts of their ordinary legal effect. Stephen, supra, 89, 205-206; Shipman, supra, 348; 1 Chitty, supra, * 551- * 552. It set up affirmative defenses which would bar the prosecution.

This concept of a special plea in bar as a plea similar in substance to confession and avoidance has been consistently followed in the decisions of this Court. The cases in which jurisdiction has been accepted on the ground that the decision below sustained a special plea in bar have invariably involved District Court decisions upholding an affirmative defense in the nature of a confession and avoidance. The motion to dismiss which was sustained by the District Court in this case was clearly not the equivalent of a special plea in bar, as thus historically understood, but, rather, the equivalent of a general demurrer. The judgment sustaining that motion is, therefore, not directly reviewable here.

This view is fully confirmed by an examination of the structure of the Criminal Appeals Act itself. For if, as the Court of Appeals thought, a 'motion in bar' is any motion which, if sustained, would exculpate the defendants, then a significant portion of the provision of the Criminal Appeals Act discussed in Part I of this opinion would be a meaningless redundancy. Every motion based upon the invalidity of a statute would, under the rough and ready definition of the Court of Appeals, also be a 'motion in bar,' because a dismissal based upon such a motion would with equal effectiveness 'end the cause and exculpate the defendants.' (261 F.2d 44.)

I would remand this case to the Court of Appeals.