United States v. Sisson/Concurrence Black

Mr. Justice BLACK concurs in the judgment of the Court and Part IIC of the opinion.

Mr. Justice BLACKMUN took no part in the consideration or decision of this case.

Mr. Chief Justice BURGER, with whom Mr. Justice DOUGLAS and Mr. Justice WHITE join, dissenting.

Both the Government and Sisson have argued that this Court has jurisdiction to review the District Court's action by virtue of the 'arrest of judgment' clause in the Criminal Appeals Act, 18 U.S.C. § 3731, which provides for a direct appeal to this Court

'(f)rom a decision (1) arresting a judgment of conviction (2)     for insufficiency of the indictment or information, (3) where      such decision is based upon the invalidity or construction of      the statute upon which the indictment or information is      founded.'

In rejecting the arguments of the parties the Court holds that we have no jurisdiction to hear this appeal, opting for the view that the 'arrest of judgment' clause carries with it all of its common-law antecedents and that the present case does not meet the criteria required by the common law. My disagreement with the Court's result and rationale is prompted by a fundamental disagreement with the Court's mode of analysis and its excessive reliance on ancient practices of common-law England long superseded by Acts of Congress.

Section 3731 appears to set three requirements for jurisdiction in this Court: (1) the decision from which the appeal is taken must be one 'arresting a judgment of conviction'; (2) the decision must be engendered by the 'insufficiency of the indictment or information'; and (3) it must be 'based upon the invalidity or construction of the statute upon which the indictment or information is founded.'

* The first requirement, that the decision from which the appeal is taken must be one 'arresting a judgment of conviction,' can without undue violence to its language be construed as being encrusted with the lore of centuries of common-law jurisprudence, and the Court has so construed it. The form of an 'arrest of judgment' was well established at an early date in the common law's development; Blackstone was able to describe a clearly defined motion in arrest as a device that was procedurally appropriate after the guilty verdict had been rendered but before the judge had imposed sentence. The court, in an early form of permitting allocution, traditionally asked the prisoner if he had 'anything to offer why judgment should not be awarded against him.' 4 W. Blackstone, Commentaries * 375. The prisoner could then respond by offering exceptions to the indictment, 'as for want of sufficient certainty in setting forth either the person, the time, the place, or the offence.' Ibid. If the prisoner was successful, the court entered an arrest or stay of the judgment. Also, under the common law, it was settled that 'the Court ought not to arrest judgments upon matters not appearing upon the face of the record; but are to judge upon the record itself, that their successors may know the grounds of their judgment.' Sutton v. Bishop, 4 Burr. 2283, 2287, 98 Eng.Rep. 191, 193 (K.B. 1769) (emphasis added). The record included 'nothing more than the judgment roll; and indeed, the common-law knew nothing of the evidence taken at a trial until the Statute of West-minster allowed exceptions to be sealed and a bill of exceptions to be brought up with the roll on writ of error.' United States v. Zisblatt, 172 F.2d 740, 741-742 (C.A.2d Cir.) (L. Hand, C.J.), appeal dismissed on Government's motion, 336 U.S. 934, 69 S.Ct. 750, 93 L.Ed. 1093 (1949).

Much, if not all, of the common-law learning was transplanted to the United States. As early as 1807, the Court recognized the existence of the motion in United States v. Cantril, 4 Cranch 167, 2 L.Ed. 584 (1807). And, in 1820, Chief Justice Marshall stated for the Court that 'judgment can be arrested only for errors apparent on the record * *  * .' United States v. Klintock, 5 Wheat. 144, 149, 5 L.Ed. 55 (1820). See also Carter v. Bennett, 15 How. 354, 14 L.Ed. 727 (1854); Bond v. Dustin, 112 U.S. 604, 58 S.Ct. 296, 28 L.Ed. 835 (1884).

Whether § 3731's requirement of an arrest of judgment incorporates the common-law jurisprudence, or whether it is viewed as simply looking to the standards of Rule 34, Fed.Rules Crim.Proc., the Court has indicated that it believes that the decision of the District Court here was not one 'arresting a judgment' because it was based on evidence adduced at the trial, notwithstanding the precise-and I suggest, purposeful, delineations of an astute District Judge quite as familiar with history and the background of this statute as are we.

The Solicitor General also has conceded that § 3731 uses the term 'arrest of judgment' in its common-law sense. However, he has sought to avoid the inescapable implications of this concession by arguing that the District Court, 'in granting appellee's motion, did not base its action wholly on the allegations of the indictment, but used as a partial predicate for its constitutional rulings the undisputed fact, which appeared from the evidence at trial, that appellee is a non-religious conscientious objector to participation in the Vietnam conflict.' The Solicitor General's argument in favor of jurisdiction seeks to avoid the District Court's reliance on evidence by pointing out that the District Court's decision did not purport to be a judgment on the merits, i.e., that the evidence was not sufficient to show that appellee committed the offense charged, and thus was not a directed acquittal. He submits that the District Court used Sisson's sincere, nonreligious form of conscientious objection to a particular war as the basis for its ruling that the indictment was constitutionally infirm as applied to Sisson. Since the evidence of conscientious objection was undisputed at trial and is undisputed now, the Solicitor General argues that the use of the facts here was akin to a stipulation of facts by parties in a criminal case, and that this Court has recognized that such a stipulation may be treated by the District Court as supplementing the indictment (like a bill of particulars). He relies on United States v. Halseth, 342 U.S. 277, 72 S.Ct. 275, 96 L.Ed. 308 (1952), and United States v. Fruehauf, 365 U.S. 146, 81 S.Ct. 547, 5 L.Ed.2d 476 (1961).

My disagreement with the Court is based upon much more fundamental grounds than those which the Solicitor General would use to avoid the strictures of the common-law concept of an arrest of judgment. In my view theCriminal Appeals Act contemplates that an arrest of judgment is appropriate in other than a closed category of cases defined by legal history. Specifically, there is no reason for the Court today to read into that class of cases all of the niceties of what might or might not have been included in the 'judgment roll' at common law. We have outgrown those formalisms.

I conclude that evidence adduced at trial can be considered by a district court as the basis for a motion in arrest of judgment when that evidence is used solely for the purpose of testing the constitutionality of the charging statute as applied. I do so because the legislative history surrounding the passage of the Criminal Appeals Act abundantly shows Congress contemplated review by this Court in such a case. The reasons for the Court's face-of-the-record limitation, in the technical common-law form of an arrest of judgment, have long since disappeared, and the Court's reliance on a policy disfavoring appeals under the Criminal Appeals Act is misplaced.

The Court's reasoning pays scant attention to the purpose of the Criminal Appeals Act and to the problem that Congress was attempting to solve in 1907 when the Act was passed. The legislative history of the Criminal Appeals Act reflects the strong desire by a number of Attorneys General of the United States for an appellate remedy in selected criminal cases. Such a remedy had been provided in England and in some States, but the lack of such a remedy for the Federal Government had '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.' Congress, however, was not stirred to complete its action on the proposals until a federal district court rendered its decision in United States v. Armour & Co., 142 F. 808 (D.C.N.D.Ill.1906), sustaining a motion to dismiss and ending a Sherman Act prosecution in which President Theodore Roosevelt had a great interest.

The House passed, without debate, a bill that gave 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 twice be put in jeopardy for the same offense. 40 Cong.Rec. 5408 (1906). The Senate, however, refused to accept the House bill. Rather, its Judiciary Committee offered as a substitute a more complicated bill which ultimately was refined to become the Criminal Appeals Act. In relevant part, the substitute would have allowed a writ of error by the United States '(f)rom the decision arresting a judgment of conviction for insufficiency of the indictment.' S.Rep. No 3922, 59th Cong., 1st Sess. (1906). When the substitute came to the floor of the Senate, the floor leader for the bill, Senator Knute Nelson of Minnesota, explained the need for the legislation in constitutional terms: '(S)ometimes an indictment is set aside on the ground that the law under which the indictment was found is held to be unconstitutional. The object (of this bill) is to allow the Government to take the case up and get a ruling of the Supreme Court.' 40 Cong.Rec. 8695 (1906) (emphasis added). The bill was then put over in the absence of unanimous consent for consideration. When the bill returned to the floor, questions were raised with respect to the arrest of judgment provision regarding the prohibition against double jeopardy. Unanimous consent to proceed again was withdrawn and the bill was again put over. 40 Cong.Rec. 9033 (1906).

An amended bill was reported out of committee in January of 1907. When this bill reached the floor, a spirited three-day debate took place respecting its impact on an accused. Indeed, among the questions discussed was whether a defendant who suvcceeded on a motion in arrest of judgment could again be prosecuted. See 41 Cong.Rec. 2192-2193 (1907). But almost none of the debate concerned the scope of an 'arrest of judgment.' Senator Knox, who had been the Attorney General before going to the Senate, did say that 'this legislation is along the line of the law as it is understood in England under the common law.' 41 Cong.Rec. 2751 (1907). However, this statement apparently referred to the right of the Government to appeal, for it was immediately followed by the observation: 'In England the Crown always had the right to an appeal in a criminal case. In my own State since its foundation the right has been conceded.' Ibid. The manifest, overriding concern of the Senate was with enacting legislation that would permit appeals as to important legal questions always subject to the bar against double jeopardy, and this concern carried over to the arrest of judgment provision. Indeed, the major limiting amendment adopted by the Senate restricted the right of review by the Government in criminal cases to constitutional issues and questions of construction of the statute under which the charge was brought. See 41 Cong.Rec. 2819-2820 (1907).

Another illustration of what the Senate thought it was doing in describing this category of appeals comes from the emphasis on distinguishing a 'motion in arrest' from an 'acquittal.' See 41 Cong.Rec. 2748 (1907). From the latter, to be sure, there was to be no appeal-no matter how many errors the trial judge had committed along the way to the acquittal in the form of erroneous rulings or other trial errors. As the majority has noted, an amendment was adopted which required that verdicts in favor of the defendant could not be set aside on appeal. 41 Cong.Rec. 2819 (1907). The text of the amendment as adopted read: 'Provided, That if upon appeal or writ of error it shall be found that there was error in the rulings of the court during the trial, a verdict in favor of the defendant shall not be set aside.' Ibid. The proponent of the amendment, Senator Rayner, expressed the view that the amendment was directed toward a 'verdict of not guilty, whether by the court or the jury * *  * .' 41 Cong.Rec. 2747 (1907) (emphasis added). Here, of course, Sisson was not acquitted but was found guilty by the jury. Further, the Court's use of the Rayner amendment to support a narrow reading of the 'arrest of judgment' provision is incongruous in the extreme in light of the fact that the amendment had no substantive effect and was later deleted from the Act. See Mr. Justice WHITE'S opinion, post, at 344 n. 11.

'Trial errors' respecting the factfinding function-which affect only the particular trial-were distinguished from errors of law that had been separated from the trial on the merits, and that involved constitutional rulings that could affect future attempts of the Government to prosecute under the same statute:

'The defendant gets the benefit of all errors in the trial     which are in his favor, and can challenge all errors in the      trial which are against him. It is certainly not too much when he attacks the trial itself or     the law under which it is conducted to give the people the      right to a decision of their highest courts upon the validity      of statutes made for their protection against crime.' 41      Cong.Rec. 2752 (1907) (remarks of Senator Knox).

'The motion in arrest of judgment can only be made-it is     wholly inapplicable to any other condition than that of      conviction-to a verdict of guilty. It is interposed after a     verdict of guilty and before judgment for an alleged legal      reason that will arrest the court in pronouncing judgment      upon the verdict.' 41 Cong.Rec. 2753 (1907) (remarks of     Senator Patterson).

The Senate passed the bill with the acquired floor amendments on February 13, 1907. 41 Cong.Rec. 2825 (1907). The House insisted on a conference, but the conference committee adopted the Senate version. The resulting conference committee bill was ultimately adopted. 41 Cong.Rec. 3994, 4128 (1907).

Notably, the debates on the Senate bill which formed the basis of the Act demonstrate a total lack of concern with the technical niceties of ancient common-law forms of pleading. And, far from distinguishing cases where a congressional act was invalidated on its face from cases where it was invalidated as applied to a situation that Congress clearly intended to reach, the debates appear to contemplate both cases as appropriate for appeal to this Court-certainly the evil aimed at-and the rationale of the Act is broad enough to encompass both situations. Appeal was to be for the purpose of deciding 'constitutional questions,' 'questions of law' which, if the district judge's decision were permitted to stand, could lead to conflict and different treatment under the same criminal statutes in different parts of the country, with no opportunity under existing law for resolution in this Court. The Government was to have a chance to 'settle the law as to future cases of like character.' 41 Cong.Rec. 2194 (1907) (emphasis added).

It is difficult to imagine a case more closely fitting into this rationale than that now before us. The class of nonreligious conscientious objectors is not likely to be a small one. Indeed under the impetus of this holding it is likely to grow. Yet whether or not a member of that class can constitutionally be punished for refusing to submit to induction now depends on where that person is tried and by whom. That one district judge may entertain a different view of the Constitution than does another is an extraordinary reason for differing results in cases that rationally ought to be decided the same way-and with appellate review available to insure that end. The conclusion that this is not a 'motion in arrest,' insulates the judge's constitutional decision from review anywhere-here or in the Court of Appeals. That, I submit, is precisely the situation Congress thought it was correcting with the Criminal Appeals Act. It is remarkable that the Court finds it so easy to ignore the explicit and meaningful legislative history which refutes its strained reading of the statute and history.

The common-law rule that an arrest of judgment could be based on nothing more than the judgment roll seems to have been required by the existence of the very limited record of that day which did not include the evidence adduced at trial. Evidentiary matters were not before the appellate courts, and it would have been impossible for the arresting court's 'successors (to) know the grounds of their judgment,' Sutton v. Bishop, supra, if the arresting court considered the evidence at trial. This Court in this case obviously has no such problem in providing appellate review. The records before us contain complete transcripts of the trial proceedings as a matter of course.

Accordingly, while the District Court admittedly looked to evidence, including demeanor evidence, for its findings that Sisson was 'sincere' and was 'genuinely and profoundly governed by his conscience,' this use for that purpose should not now bar this Court from considering the District Court's action as an arrest of judgment. As long as the evidence was used to test the constitutionality of the charging statute as applied to the defendant, and not to test the sufficiency of the proof against the allegations in the indictment, the use of the evidence was consistent with the purposes of an arrest of judgment.

In this case, there has been no finding that Sisson did not commit the acts charged; there has been only a holding by the trial judge that his acts were constitutionally protected-a holding that stands as the sole impediment to imposing a jury verdict of guilty; no verdict of acquittal was ever returned. Even our present Federal Rules of Criminal Procedure make a similar distinction between a 'Motion for Judgment of Acquittal,' Rule 29, and an 'Arrest of Judgment,' Rule 34. The former is entered 'if the evidence is insufficient to sustain a conviction' of the offense charged, while the latter is granted where the indictment 'does not charge an offense' at all. Rule 29 allows a judge to reserve his decision on a motion for judgment of acquittal until after the jury has returned a verdict. If he then grants the motion, the defendant stands acquitted, but again only because the evidence has been found insufficient to support the charge. Where the grounds for granting an 'acquittal' are based on an independent legal decision about the interpretation or construction of the statute, the judge's action will be an 'arrest of judgment' even though he labels it an 'acquittal.' United States v. Waters, 84 U.S.App.D.C. 127, 175 F.2d 340 (1948).

I cannot believe that Congress, fully aware that no appeal was available for a directed verdict or judgment n.o.v., contemplated that this form of judicial action should be accorded the same nonappealable status. Moreover, the sophisticated District Judge could have entered a judgment n.o.v. if he wanted to avoid review or if he thought that he was indeed passing on the sufficiency of the evidence to meet the allegations of the indictment. Of course, his views are not controlling, but I am comforted by his appraisal and quite satisfied he knew precisely what he was doing-or thought he did on the assumption that his action was reviewable under well-established principles the Court now ignores.

The Court also inveighs against a 'broad' construction of the Act, noting that this Court has denominated an appeal by the Government in a criminal case as an 'exceptional right,' and as 'something unusual, exceptional, not favored.' Ante, at 291. This is an odd characterization; the right is precisely as 'exceptional' or 'unusual' as Congress makes it. This Court has no power to define the scope of its own appellate review in this context and a subjective distaste for review at the instance of government has no proper place in adjudication. The tendency to be miserly with our jurisdiction did not prevent our construing the three-judge court acts to include cases where statutes were held unconstitutional as applied, Query v. United States, 316 U.S. 486, 62 S.Ct. 1122, 86 L.Ed. 1616 (1942); C. Wright, Federal Courts 190 (2d ed. 1970), and it should not carry any more weight in assessing our responsibility to decide the constitutional issues in this case, the more so when it is a constitutional holding of great moment.

The second requirement, that the decision of the District Court must rest upon the 'insufficiency of the indictment,' also presents a difficult question here. The Court emphasizes, wrongly, in my view, that both grounds upon which the District Court's decision rests are defenses that Sisson successfully asserted. In an ordinary case, an indictment, to be sufficient, need not anticipate affirmative defenses. This, however, is not the ordinary case. The indictments in cases of this nature typically charge only that the Selective Service registrant

'did unlawfully, knowingly and wilfully fail and neglect and     refuse to perform a duty required of him under and in the      execution of the Military Selective Service Act of 1967 and the rules, regulations and      directions duly made pursuant thereto, particularly 32 Code      of Federal Regulations 1632.14, in that he did fail and      neglect and refuse to comply with an order of his local draft      board to submit to induction into the armed forces of the      United States; in violation of Title 50, Appendix, United      States Code, Section 462.'

Yet this allegations subsumes in its terse language a myriad of elements that the Government may be called upon to prove if the defense makes an appropriate challenge. Prosecutions for refusing to submit to induction are unusual because they incorporate into the judicial proceeding much that has occurred in the administrative processes of the Selective Service System. All of the courts of appeals have compensated for the administrative proceedings by holding that the Government need not plead and prove many elements that would normally be a part of its case-in-chief. The courts of appeals have devised a presumption of regularity which attaches to the official acts of the local boards that, standing alone, is sufficient to preclude reversal of a conviction when a given element is not raised at trial. See particularly Yates v. United States, 404 F.2d 462 (C.A.1st Cir. 1968) (presumption of regularity attaches to the order-of-call requirement). However, if the defendant succeeds in making a prima facie case against the presumption, the Government is put to its proof on the particular element of the offense. See United States v. Baker, 416 F.2d 202 (C.A.9th Cir. 1969).

By analogy, the Government is not required to plead and prove that the defendant was properly classified in category I-A as available for induction. Rather, the defendant can challenge the classification at trial if he has preserved his claim, and force the Government to prove that there was indeed a 'basis in fact' for the classification. Thus, establishing the appropriate classification is actually an element of the Government's case, but because of the deference given to the administrative process that preceded the criminal proceedings, the Government has been excused from pleading and proving it in the indictment. Since the general allegations in the indictment actually do subsume the element that the District Court held was based on an invalid statute as applied to Sisson, that court's decision was based on the 'insufficiency of the indictment' within the meaning of § 3731.

The Court also appears to assume that an indictment may be 'insufficient' because the acts charged cannot constitutionally be made an offense, e.g., where they show the existence of a constitutional privilege that bars conviction. But, the Court concludes that 'this indictment * *  * does not allege facts that themselves demonstrate the availability of a constitutional privilege.' Ante, at 288.

In my view, the Court's suggestion is simply the same argument, differently approached, as the argument that a motion in arrest can be based only on facts appearing on the face of the record. In both cases, the single question, as I see it, is whether Congress drew a distinction for purposes of appeal by the Government, between cases in which the district court found the entire statute unconstitutional, and cases in which the court found the statute unconstitutional as applied.

The view has been expressed that the Criminal Appeals Act is badly drawn and gives rise to a multitude of problems. We can all agree as to the infirmities of the statute but this is hardly an excuse to take liberties with its plain purposes reasonably articulated in its terms. Prior urgings addressed to the Congress to correct this situation have gone unheeded. But the Court's holding today is a powerful argument to spur corrective action by Congress.

Mr. Justice WHITE, with whom The CHIEF JUSTICE and Mr. Justice DOUGLAS join, dissenting.