(dissenting) :
After a trial before Judge Travia without a jury in the Eastern District of New York, the indictment charging Ronald Jenkins with violating 50 U.S.C. App. § 462(a) for failure to comply with an order to submit to induction into the armed forces was dismissed. In dismissing the indictment and discharging the defendant, Judge Travia concluded *881that the law had not been violated since Jenkins was not required to report for induction while his post-induction notice request for reclassification as a conscientious objector was still pending. On appeal, the government argued that Judge Travia’s interpretation of the controlling law was clearly erroneous. Without actually deciding this issue, the majority of this panel now holds that the government has no right to appeal, since to permit it to do so would be to put the defendant in double jeopardy.
For two reasons, I am unable to join the majority in concluding that the government’s appeal is barred in the present case by the Double Jeopardy Clause. First, I believe that Judge Tra-via’s decision was precisely what he termed it, a dismissal of the indictment, an order from which a government appeal is not barred, when, as here, the dismissal is based on a construction of the statute upon which the indictment is founded. 18 U.S.C. § 3731.1 Second, it is my firm belief that the majority’s inflexible application of the Double Jeopardy Clause unnecessarily frustrates the fair administration of criminal justice.
With regard to the first of these points, it is, of couse, true, that Judge Travia’s characterization of his decision as a dismissal of an indictment does not conclusively make it that for purposes of determining the government’s right to appeal.2 If his decision should more accurately have been described as an acquittal, then the Double Jeopardy Clause would prohibit this appeal. On the other hand, if Judge Travia’s characterization is proper, then there is no obstacle to further government prosecution of this case.3
In determining the underlying identity of the trial judge’s decision, we should first consider United States v. Sisson, 399 U.S. 267, 90 S.Ct. 2117, 26 L.Ed.2d 608 (1970). That case also involved a refusal to submit to induction on the basis of a claim for conscientious objector status. After a trial and a jury verdict of guilty, District Judge Wyzanski stated that the indictment against Sisson failed to “charge an offense.” Based on the evidence adduced at trial, and in particular, the demeanor of the defendant, the judge concluded that Sisson was a “sincerely conscientious man” and that because of his genuine interest in not killing, the Free Exercise and Due Process Clauses prohibited application of the 1967 draft act to him. Accordingly, he granted the defendant’s motion for an arrest of judgment.
Appealing directly to the Supreme Court,4 the government claimed that the Court had jurisdiction under the “ar*882resting judgment” provision of the Criminal Appeals Act, 18 U.S.C. § 3731. The Supreme Court, however, refused to hear the appeal, maintaining that the district judge’s decision, although designated by him an “arrest of judgment,” was, in fact, an acquittal, which was un-appealable by the government under § 3731. In addition, the Court reasoned that being an acquittal, the appeal by the government was further barred by the Double Jeopardy Clause.
In concluding that Judge Wyzanski’s decision had not been an arrest of judgment, but rather an acquittal, the Court emphasized that the disposition of the case had been “bottomed on factual conclusions not found in the indictment but instead made on the basis of evidence adduced at the trial,” especially the demeanor of the defendant. The Court made clear, however, • that had the district judge granted the motion instead “on the face of the record,” that is, on the basis that the indictment failed to charge any violation of the law, the ruling could have been regarded as an arrest of judgment and the government would have been permitted to appeal. See, e. g., United States v. Bramblett, 348 U.S. 503, 75 S.Ct. 504, 99 L.Ed. 594 (1955).
Just as a genuine arrest of judgment would have permitted a government appeal in Sisson, under § 3731, so, too, that statute would have allowed an appeal from a genuine dismissal of an indictment. But as Sisson makes clear, before an appellate court may exercise jurisdiction, it must inquire into the real nature of the trial judge’s action to make certain that it is not an acquittal barring appeal. Thus the crucial consideration in jJiis 'inquiry is whether the judge’s decision was on the merits, that is, did it hinge on the facts adduced at triaLor rather was it made independently, “on the face of the record.” In Sis-son, Judge Wyzanski clearly relied upon the evidence at trial, and, in particular, on the demeanor of the defendant. In granting an arrest of judgment, he first made a finding on the factual issue of Sisson’s sincerity as a conscientious objector.
Judge Travia’s dismissal of the indictment against Jenkins, on the other hand, was essentially a legal determination construing the statute on which the indictment was based. 50 U.S.C. App. § 462(a).5 In contrast to Judge Wyzan-*883ski, Judge Travia was not required to resolve any factual issues in order to reach his decision. It is true that the judge did make nine findings of fact. But of these, six had no bearing whatever on the pivotal legal issue, whether or not the pertinent statute required an individual to report for induction if his post-induction notice request, for conscientious objector status was still pending. Indeed, these six findings were undisputed. In any event, as the Sisson Court noted in discussing United States v. Halseth, 342 U.S. 277, 72 S.Ct. 275, 96 L.Ed. 308 (1952), even where the parties go so far as to stipulate facts not contained in the indictment for purposes of a motion to dismiss, an appeal will lie so long as “the facts in the stipulation were irrelevant to the legal issue.” 399 U.S. at 285, 90 S.Ct. at 2127.
The other three findings of fact simply established that the defendant requested and returned the appropriate form for claiming conscientious objector status. While these findings bear some relation to the trial judge’s ultimate conclusion of law — that Jenkins need not have reported for induction during the pendency of his request for reclassification — they hardly represent the sort of foundation for the decision that the findings in Sisson did. At no time, for example, was the court called upon to resolve a factual issue regarding whether the application for reclassification by Jenkins had actually been filed. To be sure, the government at the time of the return of the indictment was fully aware of this request for reclassification, having had access to his selective service file. The government could easily have made mention of that claim for conscientious objector status in the indictment. Had that been done, there would be no doubt but that Judge Travia’s decision would have been “on the face of the record” and thus a genuine dismissal of the indictment rather than an acquittal on the merits.
We do serious harm to the fair administration of criminal justice when we belabor technical requirements to the point where inclusion or omission of three innocuous, uncontested statements in the indictment ultimately determine whether the government may appeal from the trial judge’s decision in a criminal case. We would also be penalizing the government for following a well-established and until now unquestioned rule that indictments need not state the entire factual background of a case, but may simply track the language of the statute allegedly violated and, in addition, do little more than state time and place in approximate terms. See F.R.Cr.P. 7(c); United States v. Fortunato, 402 F.2d 79, 82 (2d Cir. 1968), cert, denied, 394 U.S. 933, 89 S.Ct. 1205, 22 L.Ed.2d 463 (1969).
The Supreme Court’s decision in United States v. Boston & Maine R.R. Co., 380 U.S. 157, 85 S.Ct. 868, 13 L.Ed.2d 728 (1965), offers substantial support for these views. That case involved an appeal by the government from a dismissal of one count of an indictment charging a violation of § 10 of the Clayton Act, which prohibits any commercial dealings by a common carrier in an amount greater than $50,000 with another enterprise in which officers of the' carrier have “any substantial interest.” Count I of the indictment had charged that the Boston & Maine R.R. and three of its officers had violated'§ 10 by arranging a sale of railroad equipment valued in excess of $50,000 to the International Railway Equipment Corp., in which the officers had a “substantial interest.”
*884The trial judge recognized that the indictment itself was sufficient to withstand the defendants’ motion to dismiss. But based on information presented in the bill of particulars, he granted the motion. The bill of particulars had described the “substantial interest” cited in the indictment as consisting of an agreement among the defendants to use their efforts to produce profits for International Railway and that they would then get a share of these profits. On the basis of this description, the court found no violation of § 10 since “substantial interest” within the meaning of the statute was “limited to one who has a then present legal interest in the buying corporation . . . ” The government appealed directly to the Supreme Court under § 3731 and the Court, without expressing any reservations as to its jurisdiction, reviewed the ease, ultimately vacating the trial judge’s decision and remanding for further consideration.
Just as in Boston & Maine R.R. the indictment here charged a criminal offense; yet, on the basis of certain undisputed facts not contained in the indictment, the trial judge construed the underlying statute as not applicable to the particular case. In light of this substantial similarity between the cases, Boston & Maine R.R. offers strong support for permitting an appeal in the present case.6
But entirely apart from the question whether Judge Travia’s decision was a dismissal of an indictment or an acquittal, I believe there is still another reason for permitting the government to appeal in this case. Simply stated, it is my view that the Double Jeopardy Clause is not an abstract rule, but one that should be adapted and applied in light of the totality of circumstances of each particular case. As Judge Friendly’s thoroughgoing history of the Clause reveals, its evolution 'has been clouded with contradictions, inconsistencies, and uncertainties. It would be a serious mistake slavishly to adhere to a rigid application of this fifth amendment protection. An unalterable rule that the Double Jeopardy Clause bars all government appeals from acquittals, fails to weigh against the individual’s very proper interest in not experiencing the anxiety, expense, and harassment that a second trial brings, the equally considerable interest of society in the fair, just, and sensible administration of criminal justice.7 Only last term, the Supreme Court in Illinois v. Somerville, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425 (1973), rejected the notion that technical errors resulting in a mistrial should bar reproseeution. In such cases, the “ends of public justice” demand that “the purpose of law, to protect society from those guilty of crimes [not] be frustrated by denying courts power to put the defendant to trial again.” 410 U.S. at 470, 93 S.Ct. at 1073.
I believe that the “ends of public justice” will not be served if we permit a defendant who is clearly guilty to go free because of the trial judge’s erroneous interpretation of the controlling law. That Jenkins is guilty would appear to be indisputable in light of our decision in United States v. Mercado, 478 F.2d 1108 (2 Cir. 1973), in which we held without reservation that even prior to United States v. Ehlert,8 the *885law of this circuit was that an individual had to report for induction although his post-induction notice claim for conscientious objector status was still pending.
Accordingly, I would vacate the order of the court below and remand for a proper application of the law.
. 18 U.S.C. § 3731 provides that:
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 present version of § 3731, except for eliminating the government’s right to appeal directly to the Supreme Court from the decision of a district court, in all other respects leaves intact the right to appeal which the government had under the former version of the statute. See p. 870 supra. Under that former version the government could appeal from a decision dismissing an indictment “where such decision is based upon the invalidity or construction of the statute upon which the indictment or information is founded.”
. As United States v. Sisson, 399 U.S. 267, 280, 90 S.Ct. 2117, 26 L.Ed.2d 608 (1970), makes clear, the appellate court must look behind the label used by the trial judge to determine the true nature of his decision.
. The rationale for this distinction in treatment of acquittals and dismissals of indictments arises from the fact that a dismissal based upon the invalidity or construction of the statute on which the indictment was founded was not considered to have placed the defendant in jeopardy, since it was not a determination on the merits of the case. M. Friedland, Double Jeopardy 63 & 63 n. 1 (1969).
. Former 18 U.S.C. § 3731, under which the appeal in Sisson was brought, permitted a direct appeal to the Supreme Court by the *882government from a decision arresting a judgment of conviction as well as one dismissing an indictment, “where such decision is based upon the invalidity or construction of the statute upon which the indictment or-information is founded.” The present version of § 3731, under which the government seeks to appeal in Jenkins no longer permits direct appeal to the Supreme Court from the district court’s decision. However, as has been noted, in all other respects it leaves intact the government right to appeal. See p. 870 supra.
. Specifically, Judge Travia was of the view that 50 U.S.C. App. § 462(a), making it a crime to fail to comply with an induction order, was qualified by 32 C.F.R. § 1625.2, which provided that
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 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.
In Judge Travia’s view, this provision relieved an individual who had received his notice from reporting for induction so long as his request for reclassification was pending. *883This view was in conflict with the law in the Second Circuit at the time, United States v. Mercado, 478 F.2d 1108 (2 Cir. 1973), the weight of authority in the other circuits, e. g. Ehlert v. United States, 422 F.2d 332 (9th Cir. 1970), Davis v. United States, 374 F.2d 1 (5th Cir. 1967), United States v. AlMajied Muhammed, 364 F.2d 223 (4th Cir. 1966), United States v. Taylor, 351 F.2d 228 (6th Cir. 1965), and the position adopted by the Supreme Court after the date Jenkins was to report for induction, but before Judge Travia’s decision. United States v. Ehlert, 402 U.S. 99, 91 S.Ct. 1319, 28 L.Ed. 2d 625 (1971).
. It is, of course, true that in Boston & Maine R.R. the appeal was brought under the former version of § 3731, while the appeal in the present case has been raised under the amended § 3731. Nevertheless, as the majority opinion correctly suggests, the amendments to § 3731 were in no way intended to restrict the government’s right to appeal. Thus, if an appeal could have been brought under the prior § 3731, it may be brought under the amended version of the statute. See p. 700 supra.
. For quite some time, legal commentators have urged a more flexible analysis in determining whether the Double Jeopardy Clause is applicable to the circumstances of a particular case, gee generally Mayers & Yar-brough, Bis Vexari: New Trials and Successive Prosecutions, 74 Harv.L.Rev. 1 (1960) ; Note, Twice in Jeopardy, 75 Yale L.J. 262 (1965).
. 402 U.S. 99, 91 S.Ct. 1319, 28 L.Ed.2d 625 (1971). In Ehlert, the Supreme Court held *885that an individual must comply -with an induction notice even though his post-induction notice request for reclassification as a conscientious objector has not yet been decided. The individual, whose beliefs had crystallized between notice and induction, would be entitled to a prompt in-service determination of his claim.