United States v. Mersey

Mr. Justice Stewart,

whom Mr. Justice Frankfurter and Mr. Justice Harlan join, dissenting.

I do not reach the merits of this case, because I think the District Court’s judgment was not of a kind which the Criminal Appeals Act makes directly reviewable by this Court. It seems clear to me that the dismissal of the information was not “based upon the invalidity or construction of the statute,” and equally clear that the judgment was not one “sustaining a.motion in bar.” 1

I.

The District Court’s decision was based, solely upon the interpretation of Treasury regulations, not upon the invalidity or construction of an Act of Congress. The court found it doubtful that the regulations in question were issued to implement the country-of-origin marking requirements of 19 U. S. C. § 1304,2 and held that in any event the intent of the regulations was not sufficiently unambiguous to support a criminal prosecution. No contention was made that the statute itself was invalid. The trial court did not question that the statute validly and clearly confers power upon the Secretary of the Treasury to issue a properly worded regulation making the acts of the appellees unlawful. This is made apparent by the district judge’s statement that “[t]he Secretary could very easily have indicated that East and West Ger*454many should be considered two separate countries for all purposes within the jurisdiction of the Treasury Depart-., ment . . . Thus the decision we are asked to review in no . way impinges upon or construes the legislation which Congress enacted. Compare United States v. Foster, 233 U. S. 515, 522-523.

Whether under the Criminal Appeals Act an appeal from an order of dismissal based upon a District Court’s construction of an administrative regulation may be brought directly here is a question which apparently has not been considered until now. The Court’s resolution of the question seems to me at odds with the tradition' of strict construction of the Criminal Appeals Act and contrary to the policy, reflected notably in the Act of February 13, 1925, 43 Stat. 936, of narrowly limiting the appellate jurisdiction of this Court.3 “The exceptional right of appeal given to the Government by the Criminal Appeals Act is strictly limited to the instances specified.” United States v. Borden Co., 308 U. S. 188, 192. See United States v. Dickinson, 213 U. S. 92, 103.

Avoidance of prolonged uncertainty as to the validity or meaning of a federal criminal law is obviously a desideratum in the effective administration of. just,ins. More*455over, it is clearly desirable to bring to the attention of Congress as promptly as possible any occasion for legislative clarification or amendment. When a District Court holds a criminal statute invalid or gives it a construction inconsistent with the understanding of those in the Executive Branch charged with enforcing it, this policy is well served by expediting ultimate determination of the matter. But expedited review of the judgment in the present case serves no such policy.4 Uncertainty caused by the District Court’s decision in this case could have been laid to rest at any time simply by issuance of a clearly worded Treasury regulation.

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

II.

’ Even. if the above views should prevail, the Court would still have jurisdiction of this appeal if the District Court’s judgment was one “sustaining a motion in bar, when the defendant has not been put in jeopardy.” The motion which the court sustained was for an order dismissing the information “on the ground that it does not state facts sufficient to constitute an offense against The United States.” I think such a pleading is not “a motion in bar.”

*456Until 1948 the Criminal Appeals Act provided for direct appeal to this Court from a “decision or judgment sustaining a special plea in bar, when the defendant has not been put in jeopardy.” 5 . In 1948 the phrase “motion in bar” was substituted for “special plea in bar.” 62 Stat. 845. The sole purpose of the change was -to bring the terminology of the Criminal Appeals Act into conformity with Rule 12 of the Federal Rules of Criminal Procedure * which abolished special pleas, demurrers and motions to quash as such, and substituted motions to dismiss or to grant appropriate relief. The statutory revision was not intended to, and did not, expand the Government’s right of appeal. See H. R. Rep. No. 304, 80th Cong.,: 1st Sess. A-177.8 That right is still limited to a judgment sustaining , a motion óf a kind historically considered a “special plea in bar.”

The label which the defendant may have attached to his pleading is Qf no great importance, in this connection. United States v. Oppenheimer, 242 U. S. 85, 86; United States v. Goldman, 277 U. S. 229, 236. As Mr. Justice Holmes remarked in United States v. Storrs, 272 U. S. 652, 654, “[t]he question is less what' it is called than what it is.” But, in deciding “what it is,” the Court’s opinion in Storrs underscores the essential point — “The *457statute uses technical words, 'a special plea in bar/ and we see no reason for not taking them in their technical sense.” 272 U. S., at 654.7

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

This concept of a special plea in bar as a plea similar in substance to confession and avoidance has been consistently followed in the decisions of this Court. The *458cases in which jurisdiction has been accepted on the ground that the decision below sustained a' special plea in bar have invariably involved District Court decisions upholding an affirmative defense in the nature of a confession and avoidance.8 The motion to dismiss which was sustained by the District Court in this case was clearly not the equivalent of a special plea in bar, as thus historically understood, but, rather, the equivalent of a general demurrer. The judgment sustaining that motion is, therefore, not directly reviewable here.

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

I would remand this case to the Court of Appeals.

The relevant provisions of the Criminal Appeals Act are reproduced in the Court’s opinion, ante, p. 433, note 2.

The relevant provisions of this statute are reproduced in the Court’s opinion, ante, p. 432, note. 1.

The term “statute” as used in the jurisdictional legislation which is now 28 U. S. C. § 1257 (2), providing for an appeal to this Court “where is drawn in question the validity of a statute of any state on the ground of its being repugnant to the Constitution, treaties or laws of the United States, and .the decision is in favor of its validity,” has from the beginning been given a broad interpretation, consistent with the purpose of this legislation. See Williams v. Bruffy, 96 U. S. 176, 182, 183; Reinman v. Little Rock, 237 U. S. 171; Live Oak Assn. v. Railroad Comm’n of California, 269 U. S. 354, 356. But it is one thing to say that “statute” should be construed broadly in cases involving allegedly unconstitutional state action, and quite another to say that a similar construction should be given to the term in cases involving simply the meaning of regulations made pursuant to concededly valid federal legislation. 1

The Court notes ‘‘the remedial purpose of the Act was to avert ‘the danger of frequent conflicts, real or apparent, in the decisions of the various . . . [trial courts], and the unfortunate results thereof’, and to eliminate ‘the impossibility of the government’s obtaining hnal and uniform rulings by recourse to a higher court.’ ” Ante, p. 436. This purpose has now to a large degree been fulfilled by the Act of May 9, 1942, 56 Stat. 271, giving jurisdiction over government appeals in criminal cases to the Courts of Appeals. Any conflict between circuits could, of course, be resolved here.' See Supreme Court Rule 19, par. 1 (b).

This was the language of the original Criminal Appeals A'ct (Act of March 2, 1907, c. 2564, 34 Stat. 1246), and the same wording was continued in subsequent re-enactments. See 18 U. S. C. (1940 ed.) §682; 18 U. S. G. (1946 ed.) §682.

The 1948 revision supplemented Rule 54 (c), Fed. Rules Crim. Proc., which provided that “The words 'demurrer,’ 'motion to quash,’ ‘plea in abatement,’ ‘plea in bar,’ and ‘special plea in bar,’ or words to the same,'effect, in any act of Congress shall be construed to mean the motion -raising a defense or objection provided in Rule 12.” The Notes of the Advisory Committee appended to Rule 54 make clear that an intent of this provision was to insure that the- scope of the Government’s right of appeal in criminal cases would remain unchanged.

The opinion in United States v. Hark, 320 U. S. 531, upon whose . generalized language the Court of Appeals and my Brother Brennan here so heavily rely, did not cite Storrs. To the extent that the two opinions reflect divergent approaches, Storrs seems the more carefully considered and I would follow it.

See, e. g., United States v. Celestine, 215 U. S. 278 (motion alleging special facts which showed that defendant was not subject to prosecution by the United States for the crime charged); United States v. Oppenheimer, 242 U. S. 85 (motion alleging that res judicata ■barred the action); United States. v. Thompson, 251 U. S. 407 (motion raising the affirmative defense that the charges contained in the indictment had been submitted to a previous grand jury which had refused to make a presentment thereon); United States v. Goldman, 277 U. S. 229 (motion alleging that the statute of limitations barred prosecution); United States v. Murdock, 284 U. S. 141 (motion raising defense of privilege); United States v. Hark, 320 U. S. 531 (motion raising affirmative defense of revocation of pertinent provisions of regulation which appellees were charged with violating) .