Serfass v. United States, 420 U.S. 377 (1975)

Serfass v. United States

No. 73-1424

Argued December 9, 1974
Decided March 3, 1975
420 U.S. 377

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

Syllabus

Petitioner, who had submitted a post-induction order claim for conscientious objector status to his local board, was later indicted for willful failure to report for and submit to induction into the Armed Forces. He filed a pretrial motion, accompanied by an affidavit, to dismiss the indictment on the ground that the local board did not state adequate reasons for refusing to reopen his file, and a motion to postpone the trial

for the reason that a Motion to Dismiss has been simultaneously filed, and the expeditious administration of justice will be served best by considering the Motion prior to trial.

The District Court dismissed the indictment, noting that the material facts were derived from the affidavit, petitioner’s Selective Service file, and a stipulation that the information petitioner had submitted to the board "establishes a prima facie claim for conscientious objector status based upon late crystallization." The court held that dismissal of the indictment was appropriate because petitioner was entitled to full consideration of his claim before he was assigned to combatant training and because the local board’s statement of reasons for its refusal to reopen petitioner’s file was "sufficiently ambiguous to be reasonably construed as a rejection on the merits, thereby prejudicing his right to in service review." The Government appealed under 18 U.S.C. § 3731. The Court of Appeals, rejecting petitioner’s contention that it lacked jurisdiction under § 3731 because the Double Jeopardy Clause barred further prosecution, reversed.

Held: The Double Jeopardy Clause does not bar an appeal by the United States under 18 U.S.C. § 3731 from a pretrial order dismissing an indictment since, in that situation, the criminal defendant has not been "put to trial before the trier of the facts, whether the trier be a jury or a judge." United States v. Jorn, 400 U.S. 470, 479. Pp. 383-394.

(a) In light of the language of the present version of § 3731 and of its legislative history, it is clear that Congress intended to authorize an appeal to a court of appeals so long as further prosecution would not be barred by the Double Jeopardy Clause. Pp. 383-387.

(b) The concept of "attachment of jeopardy" defines a point in criminal proceedings at which the purposes and policies of the Double Jeopardy Clause are implicated. Jeopardy does not attach until a defendant is put to trial, which, in a jury trial, occurs when the jury is empaneled and sworn, and, in a nonjury trial, when the court begins to hear evidence. P. 388.

(c) Jeopardy had not attached in this case when the District Court dismissed the indictment, because petitioner had not then been put to trial. There had been no waiver of a jury trial; the court had no power to determine petitioner’s guilt or innocence; and petitioner’s motion was premised on the belief that its consideration before trial would serve the "expeditious administration of justice." P. 389.

(d) The principle that jeopardy does not attach until a defendant is put to trial before the trier of facts is no mere technicality or mechanical rule, and petitioner’s contention that the District Court’s dismissal of the indictment was the "functional equivalent of an acquittal on the merits" is without substance, as the word "acquittal" has no significance unless jeopardy has attached. United States v. Sisson, 399 U.S. 267; United States v. Brewster, 408 U.S. 501, distinguished. Pp. 389-393.

492 F.2d 388, affirmed.

BURGER, C.J., delivered the opinion of the Court, in which BRENNAN, STEWART, WHITE, MARSHALL, BLACKMUN, POWELL, and REHNQUIST, JJ., joined. DOUGLAS, J., filed a dissenting statement, post, p. 394.