author: Mr. Justice Rehnquist Mr. Justice Douglas,

text:
    UNITED STATES v. JENKINS
    No. 73-1513.
    Argued December 9, 1974
    Decided February 25, 1975

      Deputy Solicitor General Frey argued the cause for the United States. With him on the brief were Solicitor General Bork, Assistant Attorney General Petersen, Louis F. Claiborne, and Edward R. Korman.

      James S. Carroll argued the cause and filed a brief for respondent.
   Mr. Justice Rehnquist

delivered the opinion of the Court.

Respondent Jenkins was indicted and charged with violating § 12 (a) of the Military Selective Service Act, 62 Stat. 622, as amended, 50 U. S. C. App. § 462 (a), for “knowingly refusing and failing to submit to induction into the armed forces of the United States.” App. 3. After a bench trial, the District Court “dismissed” the indictment and “discharged” the respondent. 349 F. Supp. 1068, 1073 (EDNY 1972). The Government sought to appeal this ruling pursuant to 18 U. S. C. § 3731, but the Court of Appeals for the Second Circuit dismissed the appeal “for lack of jurisdiction on the ground that the Double Jeopardy clause prohibits further prosecution.” 490 F. 2d 868, 880 (1973). We granted certiorari in this case and United States v. Wilson, ante, p. 332, also decided today, to consider the application of the Double Jeopardy Clause of the Fifth Amendment to Government appeals in criminal cases. 417 U. S. 908 (1974).

I

Respondent, who had first registered with his local draft board in 1966, was classified 1-A by his local board on November 18, 1970. He was found physically fit for induction, and on February 4, 1971, the local board sent respondent an Order to Report for Induction on February 24, 1971. After consulting an attorney and a local draft counselor, respondent wrote the local board and requested Selective Service Form 150 for a conscientious objector classification. Having received no response from the local board by February 23, the day before he had been ordered to report for induction, respondent went in person to the local board to request Form 150. Although respondent did secure the desired form, local board officials were directed by Selective Service headquarters not to postpone his induction to allow him to complete and submit the conscientious objector form. Respondent did not report for induction on February 24, 1971, and he was subsequently indicted.

Respondent was arraigned on January 13, 1972, and pleaded not guilty. The parties were directed to file all pretrial motions within 45 days, but no pretrial motions were filed within that period. The case was called and continued on several occasions. During this period respondent filed a motion for judgment of acquittal based, in part, on the following ground:

“The failure of the local board to postpone the induction order pending the determination of the defendant’s claim as a conscientious objector was arbitrary and contrary to law and rendered the Order to report for induction invalid. United States v. Gearey, 368 F. 2d 144 (2nd Cir. 1966).” App. 4.

In Gearey the Court of Appeals had interpreted the controlling Selective Service regulation to require a local board to reopen a registrant’s classification if it found that the registrant’s conscientious objector views had ripened only after he had been notified to report for induction. At the time respondent was ordered to report for induction, Gearey remained the law of the Circuit. Two months later, however, this Court rejected Gearey in a decision affirming a contrary holding from another Circuit. Ehlert v. United States, 402 U. S. 99 (1971).

When the case proceeded to trial, respondent waived trial to a jury, and the case was tried to the court. At the close of the evidence, the court reserved decision in order to give the parties an opportunity to submit proposed findings. Although it does not appear from the record that either party requested the court to find the facts specially, Fed. Rule Crim. Proc. 23 (c), the court filed written findings of fact and conclusions of law, and directed that the indictment be dismissed and the respondent be discharged. The court acknowledged that respondent had failed to report for induction as ordered, 349 F. Supp., at 1070, and that under Ehlert the board is not required to entertain conscientious objector claims arising between notice of induction and the scheduled induction date. Nevertheless, since respondent failed to report for induction at a time when Ehlert had not yet been decided and Gearey represented the prevailing law, respondent was entitled to a postponement of induction until the board considered his conscientious objector claim. The court reasoned that it would be unfair to apply Ehlert to respondent:

“This court cannot permit the criminal prosecution of the defendant under these circumstances without seriously eroding fundamental and basic equitable principles of law.” 349 F. Supp., at 1073.

The Government filed a timely notice of appeal and argued that the District Court had incorrectly concluded that Ehlert was not retroactive. Since this Court held long ago that the Government cannot bring an appeal in a criminal case absent an express enabling statute, United States v. Sanges, 144 U. S. 310 (1892), the Court of Appeals considered first whether petitioner’s appeal was authorized by 18 U. S. C. § 3731.

The Government contended, and respondent did not dispute, that the intention of Congress in amending 18 U. S. C. § 3731 in 1971 was to extend the Government's right to appeal to the fullest extent consonant with the Fifth Amendment. Judge Friendly, writing for the Court of Appeals, carefully reviewed the evolution of the Double Jeopardy Clause and concluded that the draftsmen “intended to import into the Constitution the common law protections much as they were described by Blackstone.” 490 F. 2d, at 873. While available evidence was equivocal on whether “the crown’s inability to appeal an acquittal after a trial on the merits” was incorporated in the common-law concept of double jeopardy, the majority was of the view that decisions by this Court had resolved any such ambiguity adversely to the Government. Id., at 874, citing United States v. Ball, 163 U. S. 662 (1896); Kepner v. United States, 195 U. S. 100 (1904); Fong Foo v. United States, 369 U. S. 141 (1962); United States v. Sisson, 399 U. S. 267 (1970). Although the District Court had characterized its action as a dismissal of the indictment, the Court of Appeals concluded that the respondent had been acquitted since the District Court had relied upon facts developed at trial and had concluded “that the statute should not be applied to [respondent] as a matter of fact.” 490 F. 2d, at 878.

Judge Lumbard dissented on two grounds. First, an appeal by the Government was permissible since the District Court had properly characterized its action as a dismissal rather than an acquittal. The District Court’s decision was “essentially a legal determination construing the statute on which the indictment was based,” id., at 882, and not really an adjudication on the merits in the sense that it rested on facts brought out at trial. Second, even if the District Court did acquit respondent, the Double Jeopardy Clause does not stand as an absolute barrier against appeals by the Government; there is a societal interest to be weighed in determining the appeal-ability of the decision.

II

When a case has been tried to a jury, the Double Jeopardy Clause does not prohibit an appeal by the Government providing that a retrial would not be required in the event the Government is successful in its appeal. United States v. Wilson, ante, at 344-345, 352-353. When this principle is applied to the situation where the jury returns a verdict of guilt but the trial court thereafter enters a judgment of acquittal, an appeal is permitted. In that situation a conclusion by an appellate court that the judgment of acquittal was improper does not require a criminal defendant to submit to a second trial; the error can be corrected on remand by the entry of a judgment on the verdict. To be sure, the defendant would prefer that the Government not be permitted to appeal or that the judgment of conviction not be entered, but this interest of the defendant is not one that the Double Jeopardy Clause was designed to protect.

Since the Double Jeopardy Clause of the Fifth Amendment nowhere distinguishes between bench and jury trials, the principles given expression through that Clause apply to cases tried to a judge. While the protection against double jeopardy has most often been articulated in the context of jury trials, the recent decision by Congress to authorize Government appeals whenever consistent with the Double Jeopardy Clause, when combined with the increasing numbers of bench trials, makes this area important though unilluminated by prior decisions of this Court.

A general finding of guilt by a judge may be analogized to a verdict of “guilty” returned by a jury. Mulloney v. United States, 79 F. 2d 566, 584 (CA1 1935), cert. denied, 296 U. S. 658 (1936). In a case tried to a jury, the distinction between the jury’s verdict of guilty and the court’s ruling on questions of law is easily perceived. In a bench trial, both functions are combined in the judge, and a general finding of “not guilty” may rest either on the determination of facts in favor of a defendant or on the resolution of a legal question favorably to him. If the court prepares special findings of fact, either because the Government or the defendant requested them or because the judge has elected to make them sua sponte, it may be possible upon sifting those findings to determine that the court’s finding of “not guilty” is attributable to an erroneous conception of the law whereas the court has resolved against the defendant all of the factual issues necessary to support a finding of guilt under the correct legal standard. The Government argues that this is essentially what happened in this case. Brief for United States 11-14.

We are less certain than the Government, however, of the basis upon which the District Court ruled. It is, to be sure, not clear that the District Court resolved issues of fact in favor of respondent. But neither is it clear to us that the District Court, in its findings of fact and conclusions of law, expressly or even impliedly found against respondent on all the issues necessary to establish guilt under even the Government’s formulation of the applicable law. The court’s opinion certainly contains no general finding of guilt, and although the specific findings resolved against respondent many of the component elements of the offense, there is no finding on the statutory element of “knowledge.” In light of the judge’s discussion of the Gearey issue in his opinion, such an omission may have reflected his conclusion that the Government had failed to establish the requisite criminal intent beyond a reasonable doubt. See n. 3, supra.

On such a record, a determination by the Court of Appeals favorable to the Government on the merits of the retroactivity issue tendered to it by the Government would not justify a reversal with instructions to reinstate the general finding of guilt: there was no such finding, in form or substance, to reinstate. We hold today in Wilson, supra, that the Double Jeopardy Clause does not bar an appeal when errors of law may be corrected and the result of such correction will simply be a reinstatement of a jury’s verdict of guilty or a judge’s finding of guilt. But because of the uncertainty as to the basis for the District Court’s action here, Wilson does not govern this case.

The Government suggests two possible theories, each of which would go beyond our holding in Wilson, for permitting an appeal even though the trial proceedings did not result in either a verdict or a finding of guilt. First, the Government suggests that “whether a new trial must follow an appeal is always a relevant consideration,” but no more; the Double Jeopardy Clause is not an absolute bar in such a situation. Second, at least in a bench trial setting, the Government contends that the concept of “trial” may be viewed quite broadly. If, in a bench trial, a judge has ruled in favor of the defendant at the close of the Government’s case on an erroneous legal theory, the Government ought to be able to appeal; if the appeal were successful, any subsequent proceedings including, presumably, the reopening of the proceeding for the admission of additional evidence, would merely be a "continuation of the first trial.” Tr. of Oral Arg. 16. This theory would also permit remanding a case to the District Court for more explicit findings.

We are unable to accept the Government's contentions. Both rest upon an aspect of the “continuing jeopardy” concept that was articulated by Mr. Justice Holmes in his dissenting opinion in Kepner v. United States, 196 U. S., at 134-137, but has never been adopted by a majority of this Court. Because until recently appeals by the Government have been authorized by statute only in specified and limited circumstances, most of our double jeopardy holdings have come in cases where the defendant has appealed from a judgment of conviction. See, e. g., Green v. United States, 355 U. S. 184 (1957); Trono v. United States, 199 U. S. 521 (1905); United States v. Ball, 163 U. S., at 671-672. In those few cases that have reached this Court where the appellate process was initiated by the Government following a verdict of acquittal, the Court has found the appeal barred by the Double Jeopardy Clause. See, e. g., Kepner v. United States, supra; Fong Foo v. United States, 369 U. S. 141 (1962). In those cases, where the defendants had not been adjudged guilty, the Government’s appeal was not permitted since further proceedings, usually in the form of a full retrial, would have followed. Here there was a judgment discharging the defendant, although we cannot say with assurance whether it was, or was not, a resolution of the factual issues against the Government. But it is enough for purposes of the Double Jeopardy Clause, and therefore for the determination of appealability under 18 U. S. C. § 3731, that further proceedings of some sort, devoted to the resolution of factual issues going to the elements of the offense charged, would have been required upon reversal and remand. Even if the District Court were to receive no additional evidence, it would still be necessary for it to make supplemental findings. The trial, which could have resulted in a judgment of conviction, has long since terminated in respondent's favor. To subject him to any further such proceedings at this stage would violate the Double Jeopardy Clause:

“The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity . . . .” Green v. United States, supra, at 187.

Affirmed.

Mr. Justice Douglas,

with whom Mr. Justice Brennan joins,

concurring in the judgment.

I would hold that the Double Jeopardy Clause bars the Government's appeal from the ruling of this trial court in respondent's favor. See Fong Foo v. United States, 369 U. S. 141. Accordingly, I concur in the affirmance of the judgment below.

       Title 18 U. S. C. § 3731 provides, in relevant part:
      “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 appeal in all such cases shall be taken within thirty days after the decision, judgment or order has been rendered and shall be diligently prosecuted.
      “The provisions of this section shall be liberally construed to effectuate its purposes.”

       32 CFR § 1625.2 (1965):
      “The local board may reopen and consider anew the classification of a registrant (a) upon the written request of the registrant, the government appeal agent, any person who claims to be a dependent of the registrant, or any person who has on file a written request for the current deferment of the registrant in a case involving occupational deferment, if such request is accompanied by written information presenting facts not considered when the registrant was classified, which, if true, would justify a change in the registrant’s classification; or (b) upon its own motion if such action is based upon facts not considered when the registrant was classified which, if true, would justify a change in the registrant’s classification; provided, in either event, the classification of a registrant shall not be reopened after the local board has mailed to such registrant an Order to Report for Induction (SSS Form No. 252) or an Order to Report for Civilian Work and Statement of Employer (SSS Form No. 153) unless the local board first specifically finds there has been a change in the registrant’s status resulting from circumstances over which the registrant had no control.”
      The regulation had been in effect since 1955, 20 Fed. Reg. 737, and was not amended between the time Gearey was decided and the events leading up to respondent’s indictment. The regulation was amended in 1973, 38 Fed. Reg. 731.

       The District Court may have believed that respondent could not be convicted for knowingly refusing to report for induction if he had acted in the belief that the board’s order was illegal under Gearey. There was no direct evidence that respondent relied upon Gearey in refusing to report for induction. Respondent called as a witness a local draft counselor whom he had contacted upon receiving his notice to report for induction. The counselor would have testified as to respondent’s sincerity and apparently would have touched upon the Gearey issue. App. 70-73. The court ruled that the counselor’s testimony was inadmissible. At that time, the court regarded the effect of Gearey as “strictly a question of law,” id., at 73, but the judge apparently changed his mind after further deliberation, as was his prerogative:
      “Trials will never be concluded if judgments rendered after full consideration are to be reversed because of remarks made and tentative theories advanced by a judge in the course of the trial.” United States v. Wain, 162 F. 2d 60, 65 (CA2), cert. denied, 332 U. S. 764 (1947).

       The notice of appeal was filed within the requisite 30 days, but the Government did not file its brief until seven months later. The Court of Appeals indicated that it would have dismissed the appeal for failure to prosecute diligently, 18 U. S. C. § 3731, had respondent so requested. 490 F. 2d 868, 869 n. 2. Respondent has similarly made no such argument in this Court.

       By the time the Government filed its brief, the Court of Appeals had held that Ehlert could be applied to a registrant whose refusal to report for induction occurred while Gearey still represented the law of the Circuit. United States v. Mercado, 478 F. 2d 1108 (1973). The court observed, however:
      “We recognize such a- rule might be harsh as applied to a registrant who in fact, reasonably relied in good faith on the case law or upon the knowledge that local boards in this circuit would consider a belated conscientious objection claim, and perhaps there is room for flexibility in enforcement of this rule to avoid injustice in a particular case ....” Id., at 1111.

       See H. R. Conf. Rep. No. 91-1768, p. 21 (1970). Cf. S. Rep. No. 91-1296 (1970).

       Judge Lumbard analogized respondent’s case to mistrial cases in which the “ 'public’s interest in fair trials designed to end in. just judgments’ ” may be weighed. Illinois v. Somerville, 410 U. S. 458, 470 (1973). That interest, he felt, would not be served by permitting a clearly guilty defendant to go free because of an erroneous interpretation of the controlling law. 490 F. 2d, at 884. We disagree with this analysis because we think it is of critical importance whether the proceedings in the trial court terminate in a mistrial as they did in the Somerville line of eases, or in the defendant’s favor, as they did here.

       See, e. g., United States v. Ball, 163 U. S. 662 (1896); Green v. United States, 355 U. S. 184 (1957); Fong Foo v. United States, 369 U. S. 141 (1962). Cf. Kepner v. United States, 195 U. S. 100 (1904).

       1974 Annual Report of the Director, Administrative Office of the United States Courts IX-97, Trials Completed in the United States District Courts During the Fiscal Years 1962 Through 1974:
      Criminal Non-Fiscal year Total jury Jury
      1962. 3,788 1,090 2,698
      1963. 3,865 1,159 2,706
      1964. 3,924 1,076 2,848
      1965. 3,872 1,143 2,729
      1966. 4,410 1,239 3,171
      1967. 4,405 1,345 3,060
      1968. 5,533 1,800 3,733
      1969. 5,563 1,883 3,680
      1970. 6,583 2,357 4,226
      1971. 7,456 2,923 4,533
      1972. 7,818 2,968 4,850
      1973. 8,571 2,927 5,644
      1974. 7,600 2,753 4,847

       Federal Rule Crim. Proc. 23 (c):

        “Trial Without a Jury.

      “In a case tried without a jury the court shall make a general finding and shall in addition on request find the facts specially. If an opinion or memorandum of decision is filed, it will be sufficient if the findings of fact appear therein.”

       See, e. g., Sullivan v. United States, 348 U. S. 170, 174 (1954).

       Brief for United States 10 n. 6, 24 n. 16. The Government was of the view that it did not have to make this broader argument in the context of this case but merely sought to preserve it. In light of our disposition of its principal argument, we proceed to this alternative ground.

       The premise apparently underlying this position is that the factfinder has not been discharged in a bench trial; unlike a jury trial, where the discharge of the jury upon returning a verdict of acquittal terminates a defendant’s jeopardy, Green v. United States, 355 U. S., at 191, the judge theoretically remains available to reconvene the case, take up where he left off, and resume his duties as factfinder’. Preliminarily, it may be observed that the availability of the judge is by no means assured, as this case illustrates: the District Judge has reportedly resigned. 43 U. S. L. W. 2268 (1974).


source: Caselaw Access Project

author: Per Curiam. Mr. Justice Douglas,

license: Public Domain

text:
    UNITED STATES et al. v. NEW JERSEY STATE LOTTERY COMMISSION
    No. 73-1471.
    Argued November 20, 1974
    Decided February 25, 1975

      Deputy Solicitor General Wallace argued the cause for petitioners. On the brief were Solicitor General Bork, Assistant Attorney General Kauper, Louis F. Claiborne, Danny J. Boggs, and Joseph A. Marino.

      Stephen Skillman, Assistant Attorney General of New Jersey, argued the cause for respondent. With him on the brief was William F. Hyland, Attorney General.

      Briefs of amici curiae urging affirmance were filed by Robert K. Killian, Attorney General, and Barney Lapp and Daniel R. Schaefer, Assistant Attorneys General, for the State of Connecticut; by Warren B. Rudman, Attorney General, and David H. Souter, Deputy Attorney General, for the State of New Hampshire; by Louis Schwartz and Robert A. Woods for the Maryland Public Broadcasting Commission; by William J. Brown, Attorney General, and Stephen T. Parisi for the State of Ohio; by Verne Hodge, Attorney General, and Henry L. Feuerzeig, First Assistant Attorney General, for the Government of the Virgin Islands; by John B. Summers for the National Association of Broadcasters; and by Thomas B. Asher, Melvin L. Wulf, and Joel M. Gora for the American Civil Liberties Union.

   Per Curiam.

This case involves a question regarding the applicability of 18 U. S. C. § 1304, which provides:

“Whoever broadcasts by means of any radio station for which a license is required by any law of the United States, or whoever, operating any such station, knowingly permits the broadcasting of, any advertisement of or information concerning any lottery, gift enterprise, or similar scheme, offering prizes dependent in whole or in part upon lot or chance, or any list of the prizes drawn or awarded by means of any such lottery, gift enterprise, or scheme, whether said list contains any part or all of such prizes, shall be fined not more than $1,000 or imprisoned not more than one year, or both.”

Jersey Cape, a licensed radio station in New Jersey, sued for declaratory relief before the Federal Communications Commission arguing that § 1304 should not apply to the broadcast of the winning number in a lawful state-run lottery such as the one conducted by the State of New Jersey. See N. J. Stat. Ann. § 5:9-1 et seg. (1973). The Commission denied relief. 30 F. C. C. 2d 794 (1971). Upon a petition for rehearing, the New Jersey Lottery Commission was allowed to intervene and the FCC reaffirmed its denial. 36 F. C. C. 2d 93 (1972). The Lottery Commission petitioned for review in the Court of Appeals for the Third Circuit, 491 F. 2d 219 (1974), and the States of New Hampshire and Pennsylvania were granted permission to intervene as petitioners, id., at 221 n. 2. Sitting en banc, the Third Circuit unanimously reversed the FCC. We granted certiorari to resolve an apparent conflict between that decision and the decision by the Court of Appeals for the Second Circuit in New York State Broadcasters Assn. v. United States, 414 F. 2d 990 (1969).

Subsequent to the briefing and oral argument of the case in this Court, Congress passed and the President signed Pub. L. 93-583, 88 Stat. 1916, codified at 18 U. S. C. § 1307 (1970 ed., Supp. IV), which, in relevant part, provides:

“(a) The provisions of section . . . 1304 shall not apply to an advertisement, list of prizes, or information concerning a lottery conducted by a State acting under the authority of State law—
“(2) broadcast by a radio or television station licensed to a location in that State or an adjacent State which conducts such a lottery.”

The United States now urges us to dismiss this case as moot. It points out that the only relief requested was by a broadcaster located in New Jersey, a State that conducts an authorized lottery, and therefore the type of broadcast at issue is now allowed by statute. Intervenor, the State of New Hampshire disputes the suggestion of mootness. New Hampshire argues that the amendment to § 1304 does not grant it full relief. It is noted that Vermont, an adjacent State, does not conduct a state-authorized lottery. Thus, Vermont broadcasters will not be allowed, under § 1304, as modified by § 1307, to broadcast to New Hampshire listeners the winning numbers in the New Hampshire state lottery. New Hampshire apparently believes that this limitation constitutes a denial of First Amendment rights. This specific issue, however, was not briefed or argued in this Court.

In view of the enactment of § 1307, we deem it appropriate to remand to the Court of Appeals so that it may consider whether the case is now moot. Accordingly, the judgment below is vacated and the case is remanded.

It is so ordered.

The Chief Justice took no part in the consideration or decision of this case.

Mr. Justice Douglas,

dissenting.

With all respect, I do not believe that this case has become moot — certainly not for the reasons intimated by the Court. The First Amendment provides that Congress shall malee no law abridging the freedom of the press. It is to me shocking that a radio station or a newspaper can be regulated by a court or by a commission, to the extent of being prevented from publishing any item of “news” of the day. So to hold would be a prior restraint of a simple and unadulterated form, barred by constitutional principles. Can anyone doubt that the winner of a lottery is prime news by our press standards?

In our history, Congress has shown at times an appetite for performing the judicial function of finding people guilty. That is the reason why the Constitution contains Art. I, § 9, cl. 3, which outlaws bills of attainder. See United States v. Brown, 381 U. S. 437 (1965); United States v. Lovett, 328 U. S. 303 (1946). For Congress to hold that the radio station in the present case was or was not guilty of violating 18 U. S. C. § 1304 would be a flagrant usurpation of Art. Ill functions.

Our decision should rest not on what Congress has done but on the merits of the controversy, which do not seem to me to be substantial. I would not presume that Congress undertook to pass on the merits of the claim at issue before us. I would not remand for consideration of the issue of mootness. To me it is manifest that the case is not moot and that the judgment below should be affirmed.

      As the State of New Hampshire points out, the new § 1307 even on its face does not resolve the claims of all parties to this action. New Hampshire, which was granted leave to intervene in the Court of Appeals, conducts a lottery; neighboring Vermont does not. Title 18 U. S. C. § 1307 (a) (2) (1970 ed., Supp. IV), upon which the Court relies, applies only to broadcasts by a station in the State which conducts the lottery, or in an adjacent State which also conducts a lottery; presumably, then, § 1304 remains applicable to a Vermont radio station which desires to broadcast information concerning the New Hampshire lottery. The restraint imposed by -§ 1304 will thus continue to inhibit the New Hampshire lottery with 'respect to certain groups of prospective participants, including New Hampshire residents who listen to Vermont radio stations and Vermont residents who might wish to cross the state line and participate.


author: Per Curiam.

text:
    WILLIAMS & WILKINS CO v. UNITED STATES
    No. 73-1279.
    Argued December 17, 1974
    Decided February 25, 1975

      Alan Latman argued the cause for petitioner. With him on the briefs were Arthur J. Greenbaum and Martin F. Rickman.

      Solicitor General Bork argued the cause for the United States. With him on the brief were Assistant Attorney General Hills, Harriet S. Shapiro, and William G. Kanter.

      Briefs of amici curiae urging reversal were filed by Arthur B. Hanson and William J. Butler, Jr., for the American Chemical Society; by Robert B. Washburn for the American Society for Testing and Materials et al.; by Joseph Calderon for the American Guild of Authors and Composers et al.; by Charles H. Lieb for the Association of American Publishers, Inc., et al.; by Irwin Karp for the Authors League of America, Inc.; by Paul G. Zurkowski for the Information Industry Assn.; by Alfred H. Wasserstrom for the Magazine Publishers Assn., Inc.; and by the Associated Councils of the Arts.
      Briefs of amici curiae urging affirmance were filed by William D. North, Ronald L. Engel, and James M. Amend for the American Library Assn, and the Special Libraries Assn.; by Philip B. Brown, Stephen C. Lieberman, and John P. Furman for the Association of Research Libraries et al.; and by Harry N. Rosenfield for the National Education Assn.

   Per Curiam.

The judgment is affirmed by an equally divided Court.

Mr. Justice Blackmun took no part in the decision of this case.


author: Mr. Chief Justice Burger

text:
    SERFASS v. UNITED STATES
    No. 73-1424.
    Argued December 9, 1974
    Decided March 3, 1975

      Harry A. Dower argued the cause for petitioner. With him on the brief was Barry N. Mosebach.

      Edward R. Korman argued the cause for the United States. With him on the brief were Solicitor General Bork, Assistant Attorney General Petersen, and Deputy Solicitor General Frey.

   Mr. Chief Justice Burger

delivered the opinion of the Court.

We granted certiorari to decide whether a Court of Appeals has jurisdiction of an appeal by the United States from a pretrial order dismissing an indictment based on a legal ruling made by the District Court after an examination of records and an affidavit setting forth evidence to be adduced at trial.

I

The material facts are not in dispute. Petitioner, whose military service had been deferred for two years while he was in the Peace Corps, was ordered to report for induction on January 18, 1971. On December 29, 1970, he requested the form for conscientious objectors, Selective Service Form 150, and after submitting the completed form to his local board, he requested an interview. Petitioner met with the local board on January 13, 1971, and thereafter he was informed by letter that it had considered his entire Selective Service file, had “unanimously agreed that there was no change over which [petitioner] had no control,” and had therefore “decided not to re-open [petitioner’s] file.” He was also informed that he was “still under Orders to report for Induction on January 18, 1971 at 5:15 A. M.” Petitioner appeared at the examining station and refused induction on January 18.

A grand jury returned an indictment charging petitioner with willfully failing to report for and submit to induction into the Armed Forces, in violation of 50 U. S. C. App. §462 (a). At petitioner’s arraignment he pleaded not guilty and demanded a jury trial. The trial date was set for January 9, 1973. Prior to that time, petitioner filed a motion to dismiss the indictment on the ground that the local board did not state adequate reasons for its refusal to reopen his file. Attached to the motion was an affidavit of petitioner stating merely that he had applied for conscientious objector status and that the local board’s letter was the only communication concerning his claim which he had received. At the same time, petitioner moved “to postpone the trial of the within matter which is now scheduled for January 9, 1973, 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.”

On January 5 the District Court granted petitioner’s motion to continue the trial and set a date for oral argument on the motion to dismiss the indictment. Briefs were submitted, and after hearing oral argument, the District Court entered an order directing the parties to submit a copy of petitioner’s Selective Service file. On July 16, 1973, it ordered that the indictment be dismissed. In its memorandum, the court noted that the material facts were derived from petitioner’s affidavit, from his Selective Service file, and from the oral stipulation of counsel at the argument “that the information which Serfass submitted to the Board establishes a prima facie claim for conscientious objector status based upon late crystallization.” The District Court held that dismissal of the indictment was appropriate because petitioner was “entitled to full consideration of his claim prior to assignment to combatant training and service,” and because the local board’s statement of reasons for refusing to reopen his Selective Service file was “sufficiently ambiguous to be reasonably construed as a rejection on the merits, thereby prejudicing-his right to in-service review.”

The United States appealed to the United States Court of Appeals for the Third Circuit, asserting jurisdiction under the Criminal Appeals Act, 18 U. S. C. § 3731, as amended by the Omnibus Crime Control Act of 1970, 84 Stat. 1890. In a "Motion to Quash Appeal for Lack of Jurisdiction” and in his brief, petitioner contended that the Court of Appeals lacked jurisdiction because further prosecution was prohibited by the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution. The Court of Appeals rejected that contention. It concluded that, although no appeal would have been possible in this case under the Criminal Appeals Act as it existed prior to the 1970 amendments, those amendments were “clearly intended to enlarge the Government's right to appeal to include all cases in which such an appeal would be constitutionally permissible.” Relying on its earlier opinion in United States v. Pecora, 484 F. 2d 1289 (1973), the Court of Appeals held that since petitioner had not waived his right to a jury trial, and no jury had been empaneled and sworn at the time the District Court ruled on his motion to dismiss the indictment, jeopardy had not attached and the dismissal was an appealable order. Pécora had held appealable, under the present version of § 3731, a pretrial dismissal of an indictment based on a stipulation of the facts upon which the indictment was based. In this case the Court of Appeals saw “no significant constitutional difference” arising from the fact that “the instant dismissal was based upon the trial court's finding that the defendant had established a defense as a matter of law, rather than upon the finding, as in Pécora, that there were insufficient facts as a matter of law to support a conviction.” In both cases “the pretrial motion of dismissal was based upon undisputed facts raising a legal issue and the defendant did not waive his right to a jury trial,” and in both “denial of the motion to dismiss [would have] entitled the defendant to the jury trial which he ha[d] not waived.”

As to the merits, the Court of Appeals concluded that in Musser v. United States, 414 U. S. 31 (1973), this Court had “placed an abrupt end to [the] line of eases” on which the District Court relied. It held that Musser should be applied retroactively to registrants such as petitioner who refused induction before the case was decided, and that since petitioner’s local board was without power to rule on the merits of a post-induction order conscientious objector claim, his right to in-service review was not prejudiced. Accordingly, it reversed the order of the District Court and remanded the case for trial or other proceedings consistent with its opinion.

Because of an apparent conflict among the Courts of Appeals concerning the question whether the Double Jeopardy Clause permits an appeal under § 3731 from a pretrial order dismissing an indictment in these circumstances, we granted certiorari. Petitioner did not seek review of, and we express no opinion with respect to, the holding of the Court of Appeals on the merits.

II

Prior to 1971, appeals by the United States in criminal cases were restricted by 18 U. S. C. § 3731 to categories descriptive of the action taken by a district court, and they were divided between this Court and the courts of appeals. In United States v. Sisson, 399 U. S. 267, 307-308 (1970), Mr. Justice Harlan aptly described the situation obtaining under the statute as it then read:

“Clarity is to be desired in any statute, but in matters of jurisdiction it is especially important. Otherwise the courts and the parties must expend great energy, not on the merits of dispute settlement, but on simply deciding whether a court has the power to hear a case. When judged in these terms, the Criminal Appeals Act is a failure. Born of compromise, and reflecting no coherent allocation of appellate responsibility, the Criminal Appeals Act proved a most unruly child that has not improved with age. The statute's roots are grounded in pleading distinctions that existed at common law but which, in most instances, fail to coincide with the procedural categories of the Federal Rules of Criminal Procedure. Not only does the statute create uncertainty by its requirement that one analyze the nature of the decision of the District Court in order to determine whether it falls within the class of common-law distinctions for which an appeal is authorized, but it has also engendered confusion over the court to which an appealable decision should be brought.”

At the same time that this Court was struggling with the “common law distinctions” of former § 3731, the decisions of the Courts of Appeals were demonstrating that, even when apparently straightforward, the language of the statute was deceptive. Thus, although after 1948 § 3731 literally authorized an appeal to a court of appeals whenever an indictment or information was set aside or dismissed except where direct appeal to this Court was authorized, that provision was generally construed, as it was construed by the Court of Appeals in this case, supra, at 381, and n. 4, to authorize an appeal to a court of appeals only if the decision setting aside or dismissing an indictment or information was “based upon a defect in the indictment or information, or in the institution of the prosecution.” United States v. Apex Distributing Co., 270 F. 2d 747, 755 (CA9 1959). See United States v. Ponto, 454 F. 2d 657, 659-663 (CA7 1971). In such fashion, even those “common law distinctions” which were removed from the face of the Criminal Appeals Act by the 1948 amendments were preserved by judicial construction. See United States v. Apex Distributing Co., supra, at 751-755; United States v. DiStefano, 464 F. 2d 845, 847-848 (CA2 1972).

The limits of the appellate jurisdiction of this Court and the courts of appeals under former § 3731, as construed, resulted in the inability of the United States to appeal from the dismissal of prosecution in a substantial number of criminal cases. In those cases where appellate jurisdiction lay in this Court, review was limited further by decisions of “the United States not to appeal the dismissal of a prosecution believed to be erroneous, simply because the question involved [was] not deemed of sufficiently general importance to warrant” our attention.

It was against this background that Congress undertook to amend § 3731. The legislative history of the 1970 amendments indicates that Congress was concerned with what it perceived to be two major problems under the statute as then construed: lack of appealability in many cases, and the requirement that certain appeals could be taken only to this Court. See S. Rep. No. 91-1296, pp. 4-18 (1970). Particular concern was expressed with respect to problems of appealability “in selective service cases where judges have reviewed defendants' selective service files before trials and dismissed the indictments after finding that there have been errors by the draft boards.” Id., at 14. Congress was of the view that “earlier versions of section 3731” had been subject to “restrictive judicial interpretations of congressional intent.” Id., at 18. Accordingly, it determined to “assure that the United States may appeal from the dismissal of a criminal prosecution by a district court in all cases where the Constitution permits,” and that “the appeal shall be taken first to a court of appeals.” Id., at 2-3. See id., at 18.

In light of the language of the present version of § 3731, including the admonition that its provisions “shall be liberally construed to effectuate its purposes,” and of its legislative history, it is clear to us that Congress intended to authorize an appeal to a court of appeals in this kind of case so long as further prosecution would not be barred by the Double Jeopardy Clause. We turn to that inquiry.

Ill

Although articulated in different ways by this Court, the purposes of, and the policies which animate, the Double Jeopardy Clause in this context are clear. “The constitutional prohibition against 'double jeopardy’ was designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense. . . . The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.” Green v. United States, 355 U. S. 184, 187-188 (1957). See United States v. Jorn, 400 U. S. 470, 479 (1971); Price v. Georgia, 398 U. S. 323, 326 (1970).

As an aid to the decision of cases in which the prohibition of the Double Jeopardy Clause has been invoked, the courts have found it useful to define a point in criminal proceedings at which the constitutional purposes and policies are implicated by resort to the concept of “attachment of jeopardy.” See United States v. Jorn, supra, at 480. In the case of a jury trial, jeopardy attaches when a jury is empaneled and sworn. Downum v. United States, 372 U. S. 734 (1963); Illinois v. Somerville, 410 U. S. 458 (1973). In a nonjury trial, jeopardy attaches when the court begins to hear evidence. McCarthy v. Zerbst, 85 F. 2d 640, 642 (CA10 1936). See Wade v. Hunter, 336 U. S. 684, 688 (1949). The Court has consistently adhered to the view that jeopardy does not attach, and the constitutional prohibition can have no application, until a defendant is “put to trial before the trier of the facts, whether the trier be a jury or a judge.” United States v. Jorn, supra, at 479. See Kepner v. United States, 195 U. S. 100, 128, 130-131 (1904); United States v. Macdonald, 207 U. S. 120, 127 (1907); Bassing v. Cady, 208 U. S. 386, 391-392 (1908); Collins v. Loisel, 262 U. S. 426, 429 (1923).

Under our cases jeopardy had not yet attached when the District Court granted petitioner’s motion to dismiss the indictment. Petitioner was not then, nor has he ever been, “put to trial before the trier of facts.” The proceedings were initiated by his motion to dismiss the indictment. Petitioner had not waived his right to a jury trial, and, of course, a jury trial could not be waived by him without the consent of the Government and of the court. Fed. Rule Crim. Proc. 23 (a). See Patton v. United States, 281 U. S. 276, 312 (1930); Singer v. United States, 380 U. S. 24 (1965). In such circumstances, the District Court was without power to make any determination regarding petitioner’s guilt or innocence. Petitioner’s defense was raised before trial precisely because “trial of the facts surrounding the commission of the alleged offense would be of no assistance in determining” its validity. United States v. Covington, 395 U. S. 57, 60 (1969). See Fed. Rule Crim. Proc. 12 (b)(1). His motion to postpone the trial was premised on the belief that “the expeditious administration of justice will be served best by considering the Motion [to dismiss the indictment] prior to trial.” At no time during or following the hearing on petitioner’s motion to dismiss the indictment did the District Court have jurisdiction to do more than grant or deny that motion, and neither before nor after the ruling did jeopardy attach.

IV

Petitioner acknowledges that “formal or technical jeopardy had not attached” at the time the District Court ruled on his motion to dismiss the indictment. However, he argues that because that ruling was based on “ 'evidentiary facts outside of the indictment, which facts would constitute a defense on the merits at trial/ United States v. Brewster, 408 U. S. 501, 506” (1972), it was the “functional equivalent of an acquittal on the merits” and “constructively jeopardy had attached.” The argument is grounded on two basic and interrelated premises. First, petitioner argues that the Court has admonished against the use of “technicalities” in interpreting the Double Jeopardy Clause, and he contends that the normal rule as to the attachment of jeopardy is merely a presumption which is rebuttable in cases where an analysis of the respective interests of the Government and the accused indicates that the policies of the Double Jeopardy Clause would be frustrated by further prosecution. Cf. United States v. Velazquez, 490 F. 2d 29, 33 (CA2 1973). Second, petitioner maintains that the disposition of his motion to dismiss the indictment was, in the circumstances of this case, the “functional equivalent of an acquittal on the merits,” and he concludes that the policies of the Double Jeopardy Clause would in fact be frustrated by further prosecution. See United States v. Ponto, 454 F. 2d 657, 663-664 (CA7 1971). We disagree with both of petitioner’s premises and with his conclusion.

It is true that we have disparaged “rigid, mechanical” rules in the interpretation of the Double Jeopardy Clause. Illinois v. Somerville, 410 U. S. 458, 467 (1973). However, we also observed in that case that “the conclusion that jeopardy has attached begins, rather than ends, the inquiry as to whether the Double Jeopardy Clause bars retrial.” Ibid. Cf. United States v. Sisson, 399 U. S., at 303. Implicit in the latter statement is the premise that the “constitutional policies underpinning the Fifth Amendment’s guarantee” are not implicated before that point in the proceedings at which “jeopardy attaches.” United States v. Jorn, 400 U. S., at 480. As we have noted above, the Court has consistently adhered to the view that jeopardy does not attach until a defendant is “put to trial before the trier of the facts, whether the trier be a jury or a judge.” Id., at 479. This is by no means a mere technicality, nor is it a “rigid, mechanical” rule. It is, of course, like most legal rules, an attempt to impart content to an abstraction.

When a criminal prosecution is terminated prior to trial, an accused is often spared much of the expense, delay, strain, and embarrassment which attend a trial. See Green v. United States, 355 U. S., at 187-188; United States v. Jorn, supra, at 479. Although an accused may raise defenses or objections before trial which are “capable of determination without the trial of the general issue,” Fed. Rule Crim. Proc. 12(b)(1), and although he must raise certain other defenses or objections before trial, Fed. Rule Crim. Proc. 12 (b)(2), in neither case is he “subjected to the hazards of trial and possible conviction.” Green v. United States, supra, at 187. Moreover, in neither case would an appeal by the United States “allow the prosecutor to seek to persuade a second trier of fact of the defendant’s guilt after having failed with the first.” United States v. Wilson, ante, at 352. See United States v. Jorn, supra, at 484. Both the history of the Double Jeopardy Clause and its terms demonstrate that it does not come into play until a proceeding begins before a trier “having jurisdiction to try the question of the guilt or innocence of the accused.” Kepner v. United States, 195 U. S., at 133. See Price v. Georgia, 398 U. S., at 329. Without risk of a determination of guilt, jeopardy does not attach, and neither an appeal nor further prosecution constitutes double jeopardy.

Petitioner’s second premise, that the disposition of his motion to dismiss the indictment was the “functional equivalent of an acquittal on the merits,” and his conclusion that the policies of the Double Jeopardy Clause would be frustrated by further prosecution in his case need not, in light of the conclusion we reach above, long detain us. It is, of course, settled that “a verdict of acquittal ... is a bar to a subsequent prosecution for the same offence.” United States v. Ball, 163 U. S. 662, 671 (1896); Green v. United States, supra, at 188. Cf. Kepner v. United States, supra; Fong Foo v. United States, 369 U. S. 141 (1962). But the language of cases in which we have held that there can be no appeal from, or further prosecution after, an “acquittal” cannot be divorced from the procedural context in which the action so characterized was taken. See United States v. Wilson, ante, at 346-348. The word itself has no talismanic quality for purposes of the Double Jeopardy Clause. Compare United States v. Oppenheimer, 242 U. S. 85, 88 (1916), with United States v. Barber, 219 U. S. 72, 78 (1911), and United States v. Goldman, 277 U. S. 229, 236-237 (1928). In particular, it has no significance in this context unless jeopardy has once attached and an accused has been subjected to the risk of conviction.

Our decision in United States v. Sisson, 399 U. S. 267 (1970), is not to the contrary. As we have noted in United States v. Wilson, ante, at 350-351, we do not believe the Court in Sisson intended to express an opinion with respect to the constitutionality of an appeal by the United States from the order entered by the District Court in that case. Moreover, even if we were to take the contrary view, we would reach the same conclusion here. For in Sisson, jeopardy had attached; the order of the District Court was “a legal determination on the basis of facts adduced at the trial relating to the general issue of the case.” 399 U. S., at 290 n. 19. See id., at 288; United States v. Jorn, supra, at 478 n. 7. Whatever else may be said about Sisson, it does not alter the fundamental principle that an accused must suffer jeopardy before he can suffer double jeopardy.

Similarly, petitioner’s reliance on United States v. Brewster, 408 U. S. 501 (1972), is misplaced. The question in that case was whether the Court had “jurisdiction under 18 U. S. C. § 3731 (1964 ed., Supp. V) to review the District Court’s [pretrial] dismissal of the indictment against appellee.” Id., at 504-505. In the course of concluding that there was jurisdiction, we observed: “Under United States v. Sisson, 399 U. S. 267 (1970), an appeal does not lie from a decision that rests, not upon the sufficiency of the indictment alone, but upon extraneous facts. If an indictment is dismissed as a result of a stipulated fact or the showing of evidentiary facts outside the indictment, which facts would constitute a defense on the merits at trial, no appeal is available. See United States v. Findley, 439 F. 2d 970 (CA1 1971).” 408 U. S., at 506. The question at issue in Brewster, the question decided in Sisson, and the citation of United States v. Findley, demonstrate beyond question that this passage in Brewster was not concerned with the constitutional question which, by virtue of the 1970 amendments to 18 U. S. C. § 3731, is before us in this case.

V

In holding that the Court of Appeals correctly determined that it had jurisdiction of the United States' appeal in this case under 18 U. S. C. § 3731, we of course express no opinion on the question whether a similar ruling by the District Court after jeopardy had attached would have been appealable. Nor do we intimate any view concerning the case put by the Solicitor General, of “a defendant who is afforded an opportunity to obtain a determination of a legal defense prior to trial and nevertheless knowingly allows himself to be placed in jeopardy before raising the defense.” Compare United States v. Findley, 439 F. 2d 970, 973 (CA1 1971), with United States v. Pecora, 484 F. 2d, at 1293-1294. See United States v. Jenkins, 490 F. 2d 868, 880 (CA2 1973), aff’d, ante, p. 358. We hold only that the Double Jeopardy Clause does not bar an appeal by the United States under 18 U. S. C. § 3731 with respect to a criminal defendant who 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., at 479.

Affirmed.

Mr. Justice Douglas dissents, being of the view that the ruling of the District Court was based on evidence which could constitute a defense on the merits and therefore caused jeopardy to attach.

       The District Court concluded that petitioner’s defense was properly raised by motion before trial and that, although petitioner had not waived his right to trial by jury, his defense was properly to be determined by the court. Fed. Rules Crim. Proc. 12(b)(1), (4). Compare United States v. Ponto, 454 F. 2d 657, 663 (CA7 1971), with United States v. Ramos, 413 F. 2d 743, 744 n. 1 (CA1 1969). See United States v. Covington, 395 U. S. 57, 60 (1969); United States v. Sisson, 399 U. S. 267, 301 (1970); United States v. Knox, 396 U. S. 77, 83 (1969); 8 J. Moore, Federal Practice ¶ 12.04 (2d ed. 1975).

       In ordering dismissal the District Court relied primarily on United States v. Ziskowski, 465 F. 2d 480 (CA3 1972), and United States v. Folino, No. 72-1974 (CA3 June 29, 1973) (unreported).

       Title 18 U. S. C. §3731 provides in pertinent part:
      “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.”

       Prior to the 1970 amendments, which were effective January 2, 1971, 18 U. S. C. §3731 (1964 ed., Supp. V) authorized an appeal by the United States to a court of appeals in all criminal cases “[f]rom 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.” Under this provision, the Court of Appeals concluded, appeals “were permissible only if the dismissal of an indictment was based upon a defect in the indictment or in the institution of the prosecution, rather than upon evidentiary facts outside the face of the indictment which would possibly constitute a defense at trial.”

       The Court of Appeals noted that the District Court “expressly found that [petitioner] did not waive his right to a jury trial,” that the procedures for waiver required by Fed. Rule Crim. Proc. 23 (a) had not been complied with, and that simultaneously with his motion to dismiss the indictment petitioner had filed a motion to postpone the trial.

        In Pecora the Court of Appeals distinguished United States v. Hill, 473 F. 2d 759 (CA9 1972), holding unappealable the pretrial dismissal of an indictment alleging the mailing of obscene advertisements, on the grounds that in Hill (1) there was no determination whether the defendant had waived his right to a jury trial and (2) the District Court determined the character of evidence actually entered into the record “so it may be said that jeopardy had attached.” In this case the Court of Appeals concluded that the second distinction between Pécora and Hill did not “permit our holding the instant order unappealable,” and it noted that to the extent Pécora and Hill were inconsistent, it was bound by Pécora.

       Title 18 U. S. C. § 3731 (1964 ed., Supp. V) provided in pertinent part:
      “An appeal may be taken by and on behalf of the United States from the district courts direct to the Supreme Court of the United States 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, where such decision or judgment is based upon the invalidity or construction of the statute upon which the indictment or information is founded.
      “From a decision arresting a judgment of conviction for insufficiency of the indictment or information, where such decision is based upon the invalidity or construction of the statute upon which the indictment or information is founded.
      “From the decision or judgment sustaining a motion in bar, when the defendant has not been put in jeopardy.
      “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.
      “From a decision arresting a judgment of conviction except where a direct appeal to the Supreme Court of the United States is provided by this section.”
      Provision for appeals in certain cases to the courts of appeals was first made in 1942. Act of May 9, 1942, c. 295, § 1, 56 Stat. 271, codified as former 18 U. S. C. § 682 (1946 ed.). Section 682 provided for an appeal to a court of appeals from “a decision or judgment-quashing, setting aside, or sustaining a demurrer or plea in abatement to 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.”

       Act of June 25, 1948, 62 Stat. 844, codified as former 18 U. S. C. § 3731 (1946 ed., Supp. II). The reviser’s note states that “[m]inor changes were made to conform to Rule 12 of the Federal Rules of Criminal Procedure.”

       Department of Justice Comments on S. 3132, in S. Rep. No. 91-1296, p. 24 (1970). See also letter from Solicitor General Gris-wold to Senator McClellan, id., at 33.

       The relevance and significance of the “well considered and carefully prepared” report of the Senate Judiciary Committee, see Schwegmann Bros. v. Calvert Distillers Corp., 341 U. S. 384, 395 (1951) (Jackson, J., concurring), is not affected by the fact that the amendments proposed by the Committee and adopted without change by the Senate were modified by the House-Senate Conference Committee. See H. R. Conf. Rep. No. 91-1768, p. 21 (1970). The latter report contains no explanation of the changes made, and the changes themselves are consistent with the intent expressed in the Senate Report. See United States v. Wilson, ante, at 337-339.

       This has been the general view of the Courts of Appeals. E. g., United States v. Jenkins, 490 F. 2d 868, 870 (CA2 1973), aff’d, ante, p. 358; United States v. Brown, 481 F. 2d 1035, 1039-1040 (CA8 1973). But see, e. g., United States v. Southern R. Co., 485 F. 2d 309, 312 (CA4 1973).

       To the extent the passages referred to deal with the predecessors of the present version of § 3731, they are relevant because of the Court’s view that appeals from orders entered prior to the attachment of jeopardy presented no constitutional problem. See infra, at 392.

       Pursuant to 18 U. S. C. §§ 3771 and 3772, proposed amendments to the Federal Rules of Criminal Procedure, including amendments to Rule 12, were transmitted to Congress on April 22, 1974. The effective date of the proposed amendments was postponed until August 1, 1975, by Act of July 30, 1974, 88 Stat. 397.

       It is clear that Congress intended to overrule Sisson’s construction of former § 3731 in the 1970 amendments. See S. Rep. No. 91-1296, p. 11 (1970); n. 10, supra.

       In analyzing Sisson the Court of Appeals in Findley concluded: “Collectively we believe this was an approach not in terms of double jeopardy, but in terms of the land of error section 3731 was intended to cover.” 439 F. 2d 970, 973.