420 U.S. 377, 95 S. Ct. 1055, 43 L. Ed. 2d 265 (1975)
In December 1970, while his military induction had been deferred for two years of Peace Corps service, Serfass requested Selective Service Form 150 for conscientious objectors.1 After submitting the completed form and meeting with his local board on January 13, 1971, the board informed him by letter that it had unanimously decided not to reopen his file because there was no change over which he had no control, and he remained under orders to report for induction on January 18, 1971.2 Serfass appeared at the examining station but refused induction.3
A grand jury indicted Serfass for willfully failing to report for and submit to induction into the Armed Forces in violation of 50 U.S.C. App. § 462(a).4 At arraignment he pleaded not guilty and demanded a jury trial, with the trial date set for January 9, 1973.5 Prior to trial, Serfass filed a motion to dismiss the indictment on the ground that the local board did not state adequate reasons for refusing to reopen his file, supported by his affidavit stating he had applied for conscientious objector status and received only the board's letter.6 He also moved to postpone the trial pending resolution of the motion to dismiss.7
On January 5, 1973, the District Court granted the continuance and set oral argument on the dismissal motion.8 After briefs and argument, the court ordered production of Serfass's Selective Service file.9 On July 16, 1973, the District Court dismissed the indictment, relying on facts from the affidavit, the Selective Service file, and the parties' stipulation that the information submitted established a prima facie claim for conscientious objector status based on late crystallization.10
The United States appealed the dismissal to the United States Court of Appeals for the Third Circuit under 18 U.S.C. § 3731.11 Serfass moved to quash the appeal for lack of jurisdiction, contending that further prosecution was barred by the Double Jeopardy Clause.12 The Court of Appeals rejected the jurisdictional challenge, noting that no jury had been empaneled and sworn and that Serfass had not waived his right to a jury trial.13 The Supreme Court granted certiorari to address the jurisdictional question arising from the pretrial dismissal.14
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?15
Yes. The District Court dismissed the indictment on July 16, 1973, after considering the defendant's motion to dismiss supported by his affidavit, the Selective Service file, and the parties' stipulation that the submitted information established a prima facie claim for conscientious objector status based upon late crystallization.18 No jury had been empaneled and sworn at that time, and the defendant had demanded a jury trial at arraignment without waiving that right under Fed. R.
Crim. P. 23(a).19 Because the defendant had not been put to trial before the trier of facts when the court ruled on the pretrial motion, the Double Jeopardy Clause did not bar further prosecution, so the Court of Appeals possessed jurisdiction under the amended Criminal Appeals Act.20
A Court of Appeals has jurisdiction of an appeal by the United States from such a pretrial order dismissing an indictment.
Whether the Double Jeopardy Clause prohibits an appeal by the United States from a pretrial order dismissing an indictment when the defendant has not been put to trial before the trier of facts?21
The Double Jeopardy Clause protects an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense.22 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.23 In a jury trial, jeopardy attaches when the jury is empaneled and sworn.24 In a nonjury trial, jeopardy attaches when the court begins to hear evidence.25
No. Serfass filed his motion to dismiss the indictment prior to the scheduled January 9, 1973 trial date and simultaneously moved to postpone the trial pending resolution of that motion.26 The District Court granted the continuance on January 5, 1973, heard argument, and dismissed the indictment on July 16, 1973, without ever empaneling a jury or commencing the presentation of evidence on the general issue of the charge.27 The defendant therefore was never put to trial before the trier of facts, and the policies underlying the Double Jeopardy Clause were not implicated by the government's appeal.28
The Double Jeopardy Clause does not prohibit an appeal by the United States from a pretrial order dismissing an indictment when the defendant has not been put to trial before the trier of facts.
Related opinions on this issue
Justice Douglas dissented from the majority's conclusion that jeopardy had not attached.29 He maintained that the District Court's ruling was based on evidence which could constitute a defense on the merits and therefore caused jeopardy to attach. This view diverges sharply from the majority's focus on formal procedural requirements for attachment of jeopardy, such as empaneling a jury or beginning to hear evidence.
Douglas would have treated the pretrial dismissal resting on extrinsic evidentiary facts as the functional equivalent of an acquittal, thereby barring further prosecution under the Double Jeopardy Clause.30