(dissenting) :
As I understand the majority opinion, we are holding today that, because the trial judge deprived the government of something akin to due process, the defendant is to be denied the protections of the Double Jeopardy Clause. In so holding, we fly in the face of the législative history of the Criminal Appeals Act, 18 U.S.C. § 3731, 84 Stat. 1890, the Supreme Court’s decisions interpreting that Act, and our own recent decision in United States v. Jenkins, 490 F.2d 868, at 868 (2d Cir. 1973). More importantly, we have begun a process of eroding the absolute protections of a Constitutional command: “nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb.” That principle, “one of the oldest ideas in western civilization,”1 is justly founded upon “fear and abhorrence of governmental power to try people twice for the same conduct.”2 My brother Lumbard in his dissent in Jenkins, stated that the “inflexible application of the Double Jeopardy Clause unnecessarily frustrates the fair administration of criminal justice.”3 He would therefore apply to this case a balancing test to determine whether the protections of that clause attach.4 I believe that the purpose of the Double Jeopardy Clause was to insure the fair administration of criminal justice by placing an absolute barrier between the awesome power of the government and the criminal accused when a judgment on the merits is rendered in his favor. Accordingly, I dissent.
We recently had occasion in United States v. Jenkins, supra, to explore in depth the ambit of the double jeopardy protection accorded one whose indictment was dismissed. In a thorough opinion by my brother Friendly, we held that the Double Jeopardy Clause bars an *39appeal by the government after the trial court has “dismissed the indictment” based on facts developed at trial, not apparent on the face of the indictment, and which related to the general issue of the case. Although the majority expressly reserved the question whether a similar result would obtain had the district court acted before trial, neither precedent nor policy dictate a different conclusion.
It is fundamental that a defendant, once acquitted, may not again be placed in jeopardy for the same alleged crimes. Fong Foo v. United States, 389 U.S. 141, 82 S.Ct. 671, 7 L.Ed.2d 629 (1962); Kepner v. United States, 195 U.S. 100, 24 S.Ct. 797, 49 L.Ed. 114 (1905); United States v. Ball, 163 U.S. 662, 16 S.Ct. 1192, 41 L.Ed. 300 (1896). Accordingly if the judgment below constituted an acquittal of Velazquez, reprose-cution is barred and we lack jurisdiction to hear this appeal.
The majority opinion notes that Velazquez filed numerous motions for pretrial relief. The trial judge, ruling in defendant’s favor on one of these motions, dismissed the first count of the indictment which alleged failure to submit to a physical examination, and the second count — failure to report for induction — as well. These dismissals form the predicate of this appeal. Although it is true that Velazquez characterized his motion as one to dismiss the indictment pursuant to Rule 12, Fed.R.Crim. P., it is clear that he was not asserting any defect appearing on the face of the indictment, nor did he claim that the indictment failed to charge a crime, or that the underlying statute was violative of the Constitution. Rather, Velazquez asserted his factual defense to the charges, contending that he had not received proper notice of the physical examination and accordingly had no obligation to report for or submit to that examination.
It is critical to note that in support of his motion, Velazquez submitted documentary evidence, garnered in the course of pretrial discovery, which included the Minutes of Action and three Selective Service Board communications regarding his physical examination, all of which were contained in his Selective Service file. The government answered by submitting a four-page affidavit in opposition to the motion. It made no effort to dispute the evidence proffered by Velazquez, adding only that Velazquez had failed to point out that his “new address was not received until 3 days after his reporting date.” In ruling on the motion, Judge Pierce concluded that since the facts were not in dispute, and these facts sustained Velazquez’s contention that he had never received nor was otherwise aware of adequate notice of his duty to report for a physical examination, the Selective Service violations had not been established.5 Actions had not been established. Accordingly, Judge Pierce dismissed the indictment.
At the outset, it is clear that neither Velazquez’s description of his motion as one to “dismiss” the indictment nor Judge Pierce’s characterization of his decision as a “dismissal” is dispositive, of the question before us. We are instructed that it is the nature of the judgment, not the name appended to it, which is determinative of the double jeopardy issue. United States v. Sisson, 399 U.S. 267, 279 n. 7, 290, 90 S.Ct. 2117, 26 L.Ed.2d 608 (1970); United States v. Jenkins, supra, 490 F.2d at 878. In Sisson, for example, the district court granted a motion “in arrest of judgment” following a jury verdict of guilt. A majority6 of the Supreme Court held, however, that despite this characteriza*40tion, the judgment was in fact an acquittal and had to be treated as such because the trial judge had made findings of fact based on the evidence presented at trial. Moreover, he had applied the law to those facts and concluded ultimately that Sisson was innocent of draft evasion. The majority stated that since the judgment was based upon factual determinations beyond the face of the indictment, it would not be treated as a “dismissal” or an “arrest of judgment.” It was, instead, an acquittal on the merits. As such, the Court held, the government was precluded from appealing by both the then-existing version of the Criminal Appeals Act and, more basically, by the constitutional bar to double jeopardy.
Although, as in Jenkins, the trial judge in Sisson had made his findings of fact on evidence submitted in the course of a trial, any doubt that the same rationale applies to a judgment entered prior to commencement of trial was dispelled by United States v. Brewster, 408 U.S. 501, 92 S.Ct. 2531, 33 L. Ed.2d 507 (1972), where the prosecution attempted to appeal from a pretrial dismissal of an indictment. The appellee argued that the dismissal was in fact an acquittal, and hence non-appealable on statutory and constitutional grounds. The Court agreed that if the district court had gone beyond the face of the indictment to make factual findings peculiar to the case at hand, Sisson would prohibit the government from seeking review:
Under United States v. Sisson . 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 evi-dentiary facts outside the indictment, which facts constitute a defense on the merits at trial, no appeal is available.
408 U.S. at 506, 92 S.Ct. at 2534.7
Moreover, under both the prior and current Criminal Appeals statutes, every circuit that has considered the question in the context of a Selective .Service prosecution has decided that a pretrial “dismissal” based on facts not found on the face of the indictment is in reality an acquittal and may not be appealed. United States v. Rothfelder, 474 F.2d 606 (6th Cir. 1973); United States v. King, 474 F.2d 1343 (4th Cir. 1973); United States v. McCreery, 473 F.2d 1381 (7th Cir. 1973); United States v. Weller, 466 F.2d 1279 (9th Cir. 1972); United States v. Ponto, 454 F.2d 657 (7th Cir. 1971); United States v. Findley, 439 F.2d 970 (1st Cir. 1971). Although only the Seventh Circuit in McCreery and Ponto, and the Ninth Circuit in United States v. Hill, 473 F.2d 759 (1972), an obscenity prosecution, have explicitly stated that the double jeopardy clause bars reprosecution, each of the other decisions, which bar the appeal after determining that the “dismissal” in fact constituted a non-appealable acquittal, necessarily imply the constitutional bar as well.8
In the face, then, of uniform authority to the contrary,9 the majority con-*41eludes that although the trial court clearly went beyond the face of the indictment in granting Velazquez’s motion to dismiss, jeopardy did not attach because the facts relied on by the court had not “been tested in the forge of open court,” nor had they “been accepted by the government without opposition.” Putting to one side that the evidentiary facts upon which Judge Pierce ruled were effectively beyond dispute,10 I cannot subscribe to the majority’s rationale which exalts form over substance in determining when the fundamental protection of the Double Jeopardy Clause shall apply. Whether the facts found by the court were elicited at trial, in an evidentiary hearing or, as in this case, on the basis of affidavits and exhibits presenting uneontested documentary evidence, when those facts support a defense to the crime charged, an acquittal results. Surely the majority’s emphasis on procedural niceties disregards the Supreme Court’s repeated admonitions against the use of wooden technicalities in construing the double jeopardy provision. See e. g. Illinois v. Somerville, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973).
A simple illustration will demonstrate the ethereal quality of the distinction drawn by the majority between a “fact-finding proceeding” which triggers the protection of the Double Jeopardy Clause and one which does not. The majority virtually concedes that an appeal would not lie in this case had Judge Pierce ruled after receiving evidence submitted by Velazquez “in the presence of his adversary.” Thus, had Velazquez been required to call even a single witness in support of his motion — perhaps the chairman or secretary of the draft board — to authenticate the contents of *42his Selective Service file, the requisite standard of formality pronounced by the majority would have been satisfied. Not only will this concept promote needlessly prolonged litigation to supply the trappings demanded by the majority, but it is far too slender a reed on which to rest fundamental constitutional rights.
If there remains any doubt that the majority’s opinion pays homage to form at the expense of substance and reason, our decision in United States v. Strayhorn, 471 F.2d 661 (2d Cir. 1972) should lay it to rest. We set down in Stray-horn, for the guidance of trial courts in the future, a procedure in Selective Service prosecutions for dealing with defenses challenging the validity of Selective Service orders, defenses which would ultimately determine the life or death of the case. There, we stated that the order-of-call defense, which attacks the validity of the local board’s induction order, “is one properly raised before trial through a motion for judgment of acquittal.” United States v. Strayhorn, supra, 471 F.2d at 665. The forceful reasons of judicial efficiency which led us to compel prospective defendants to assert the order-of-call defense prior to trial would certainly appear applicable as well to defenses attacking the issuance and mailing of Selective Service orders, such as that advanced here. Since I read Jenkins to bar appealability had Judge Pierce sustained the identical defense following examination of Velazquez’s Selective Service file upon a motion for acquittal at the close of the prosecution’s case, I cannot accept the majority’s position which only penalizes Velazquez for heeding the import of Strayhorn.
In sum, I find it difficult to acquiesce to the erosion of the constitutional guarantee against double jeopardy which my brothers’ opinion condones. Had Velazquez called his motion a “motion for judgment of acquittal” rather than a “motion to dismiss,” and had the judge chanted the magic words — “not guilty,” “I acquit” or “the government has failed to meet its burden of proof beyond a reasonable doubt” — rather than “I dismiss,” his decision would have been immune to appellate review and the defendant protected against retrial. Surely if Sisson and Jenkins teach us anything, it is that mere labels do not carry the day on an issue as vital as double jeopardy. It can hardly be questioned that Judge Pierce indeed treated Velazquez’s motion as one to acquit, for he found facts, nowhere appearing on the face of the indictment and grounded on evidence proffered by the defendant, which, in addition, went to the essence of his guilt or innocence of the offense.
I conceive that the underlying motivation for the majority’s holding is its concern that the trial judge may bar “proper” prosecution of a case by arrogating to himself “the power to decide a case on the merits without ever having the defendant confronted with the evidence in open court.” 11 But, the judge has that power now, either by “dismissing” the indictment on undisputed, and therefore uneonfronted, facts after a trial has commenced, or by directing a verdict of acquittal at the close of the government’s ease. He may also, it would appear from my brother’s opinion, dismiss an indictment before trial on facts not appearing in the record and, so long as he does it with a sufficient degree of formality, protect the defendant against an appeal and retrial. Thus, despite its apparent narrowness, the danger with the majority’s opinion is that balancing tests will be used to whittle away what my brother Friendly referred to in Jenkins as the “thicket” of double jeopardy protections until few branches remain to shelter the accused. I cannot join in this process of attrition of one of the most basic constitutional protections.
Accordingly, I respectfully dissent.
. Bartkus v. Illinois, 359 U.S. 121, 151, 79 S.Ct. 676, 696, 3 L.Ed.2d 684 (1959) (Black, J., dissenting).
. Id.
. United States v. Jenkins (2d Cir. 1973) 490 F.2d at 881 (Bumbard, J., dissenting).
. According to the majority, “The critical question is whether the government’s action in prosecuting Velazquez, in both its administrative and judicial phases, reached the point where the government’s power to retrace its steps is checked by countervailing interests of the individual protected by the double jeopardy clause of the fifth amendment.” This is, of course another way of saying that the interests of the accused must be balanced against those of the government.
. Since I do not believe we have jurisdiction to bear this appeal, I express no view on the merits of this ruling.
. Reference is made to Part II C of Justice Harlan’s opinion in Sisson, United States v. Sisson, supra, 399 U.S. at 288-290, 90 S.Ct. 2117, in which he was writing for a majority of the Court.
. Tlie Court went on to decide that in the particular circumstances of the Brewster prosecution, the district court judgment rested solely upon the indictment itself, rather than upon extraneous facts, and hence was a reviewable dismissal rather than an acquittal.
. Both the prior and current texts of the Criminal Appeals statutes explicitly provide only for government appeal from dismissals of prosecutions. Several circuits have therefore concluded that the statute does not permit appeal from an acquittal, as opposed to dismissal, without expressly reaching the constitutional issue. In a sense, however, this begs the question, because one of the essential features of an acquittal that distinguishes it from a dismissal is its finality, in the double jeopardy sense. The determination that a particular judgment is an acquittal, therefore, is at least a tacit expression that the double jeopardy clause forbids re-prosecution.
. Contrary to the majority’s claim, United States v. Covington, 395 U.S. 57, 89 S.Ct. 1559, 23 L.Ed.2d 94 (1969), does not repre*41sent an instance in which an appeal was permitted where the trial court went beyond the face of the indictment in ruling on a motion to dismiss. In Covington, the defendant was indicted for having violated the Marihuana Tax Act by obtaining marijuana without having paid a transfer tax. The defendant moved to dismiss on the ground that his privilege against self-incrimination would necessarily provide a complete defense to the prosecution. The government argued that, properly construed, the transfer tax provisions of the Act would not compel incriminatory disclosures. The district court dismissed the indictment, and although the Court affirmed on the merits, it noted that the bases for the dismissal were questions of law and that, in Covington’s case, there was no necessity to resolve issues of fact peculiar to the motion. Moreover, in Sisson, Justice Harlan explicitly distinguished Cov-ington on the ground that no factual findings were required, and added that, “nowhere does the opinion in Covington even hint that a dismissal requiring a pretrial evidentiary hearing, or a dismissal motion properly deferred to the trial of the general issue would be appealable under the motion-in-bar provision of the Criminal Appeals Act.” United States v. Sisson, supra, 399 U.S. at 303 n. 56, 90 S.Ct. at 2137.
The majority’s reliance on United States v. Boston & Maine Railroad, 380 U.S. 157, 85 S.Ct. 868, 13 L.Ed.2d 728 (1965), which my brother Lumbard also cited in his dissent in Jenkins is similarly misplaced. The jurisdictional point was apparently neither raised nor considered. Moreover, the Court explicitly left open all questions except its construction of the statute involved. Finally, the Court noted that, although the case was decided below and argued on appeal on the assumption that the indictment itself was sufficient against a motion to dismiss but became insufficient by reason of the bill of particulars, the Court refused to express any view whether a bill of particulars was in fact part of the record for purposes of a motion to dismiss an indictment. Of course, a court may always consider the face of the record in ruling on a motion to dismiss. At most, Boston & Maine Railroad stands for the proposition that a bill of particulars which is a “filed” paper in a criminal proceeding, as is the indictment, may serve to “illuminate” the appropriate construction of a statute. But, the Selective Service documents considered in the instant case constitute evidence, not a “filed” paper or an additional pleading or “illumination” of the indictment. The documents were offered by tlie defendant as his answer to the charge and to establish his innocence.
. On appeal, the government rather weakly maintains that the district court’s unexpected granting of the defense motion prevented the prosecution from presenting its evidence. But even now the government does not deny the accuracy of the materials excerpted from Velazquez’s Selective Service file, nor does it challenge the correctness of the district court findings of fact drawn therefrom.
. In this case, of course, the defendant produced the evidence in his defense.