# United States v. Vuitch/Dissent Harlan

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United States Supreme Court
402 U.S. 62
United States v. Vuitch
Argued: Jan. 12, 1971. --- Decided: April 21, 1971
Mr. Justice HARLAN, with whom Mr. Justice BRENNAN, Mr. Justice MARSHALL, and Mr. Justice BLACKMUN join, dissenting as to jurisdiction.
Appellee Vuitch was indicted in the United States District Court for the District of Columbia for violations of D.C.Code Ann. § 22-201 (1967), the District of Columbia abortion statute. This statute is applicable only within the District of Columbia. On pretrial motion by Vuitch, the indictments were dismissed on the ground that the abortion statute was unconstitutionally vague. The United States appealed directly to this Court under the terms, of the Criminal Appeals Act of 1907, 18 U.S.C. § 3731, relying on the provision allowing direct appeal '(f)rom a decision or judgment setting aside, or dismissing any indictment of information, or any court thereof, where such decision or judgment is based upon the invalidity or construction of the statute upon which the indictment or information is founded.' It is not contested that, but for this provision of the Criminal Appeals Act, the Government would have a right to appeal to the Court of Appeals for the District of Columbia Circuit under D.C.Code Ann. § 23-105 (Supp.1970), which provides:
'In all criminal prosecutions the United States or the District of Columbia, as the case may be, shall have the same right of appeal that is given to the defendant, including the right to a bill of exceptions: Provided, That if on such appeal it shall be found that there was error in the rulings of the court during a trial, a verdict in favor of the defendant shall not be set aside.'
The Court today-relying on the generic reference to 'statutes' and 'all criminal cases' in the text of 18 U.S.C. § 3731 and the absence of an express exclusion of statutes applicable only within the District of Columbia-concludes that 18 U.S.C. § 3731 rather than D.C.Code Ann. § 23-105 provides the proper appellate route for this case. I must disagree.
* The historical development of the Government's right to appeal in criminal cases both in the District of Columbia and throughout the Nation is surveyed in Carroll v. United States, 354 U.S. 394, 77 S.Ct. 1332, 1 L.Ed.2d 1442 (1957). Section 23-105 of the D.C.Code was passed in 1901 as § 935 of the Code of 1901. 31 Stat. 1341. Prior to the Criminal Appeals Act of 1907, the Government had no right to appeal in criminal cases outside of the District of Columbia. To remedy this situation, a bill was introduced in the House of Representatives. That bill practically tracked the language of the D.C. statute, and made no provision for direct appeal to this Court. 40 Cong.Rec. 5408. The accompanying House Report described the bill as follows: 'The accompanying bill will extend (§ 935) of the code of the District of Columbia to all districts in the United States.' H.R.Rep. No. 2119, 59th Cong., 1st Sess., 2 (1906). That bill passed the House, but the Senate Committee on the Judiciary rejected the House approach of simply extending the provisions of the D.C. appeals statute to the rest of the Nation; the Senate Committee instead substituted a more narrowly drawn measure which enumerated specific substantive categories of criminal cases to be appealable by the Government and allocated jurisdiction over these appeals between the Supreem Court and the then Circuit Courts of Appeals according to the allocation of appellate jurisdiction for civil cases established in the Circuit Court of Appeals Act of 1891. S.Rep. No. 3922 59th Cong., 1st Sess. (1906). See Carroll v. United States, supra, at 402 n. 11, 77 S.Ct., at 1337. Even that bill as narrowed could not pass the Senate; it provoked extended debate in which the opponents of the measure focused on the potential for abuse of individual rights arising from repeated court proceedings, delays in appeals, and restraints on personal freedom while the Government prosecuted its appeal. See generally United States v. Sisson, 399 U.S. 267, 90 S.Ct. 2117, 26 L.Ed.2d 608 (1970). The upshot of these debates was that Senator Nelson, the bill's floor manager in the Senate, agreed to accept a variety of amendments which further narrowed the categories of cases appealable by the Government and made special provision for the defendant's release on his own recognizance. See 41 Cong.Rec. 2818-2825.
It is at this point that Senator Clarke of Arkansas offered an amendment limiting the Government's right to appeal decisions dismissing indictments or arresting judgments for insufficiency of the indictment to instances where the decision was based upon 'the invalidity or construction of the statute.' The purpose of that amendment was described by Senator Clarke as follows:
'Mr. President, the object of the amendment is to limit the right of appeal upon the part of the General Government to the validity or constitutionality of the statute in which the prosecution is proceeding. It has been enlarged by the addition of another clause, which gives the right of appeal where the construction by the trial court is such as to decide that there is no offense committed, notwithstanding the validity of the statute, and in other respects the proceeding may remain intact. I think that is a broad enough right to concede to the General Government in the prosecution of persons in the court.
'In view of the defects that recent years have disclosed, I do not believe it to be sound policy to go beyond the necessities as they have developed defects in our procedure. A case recently occurring has drawn attention to the fact that if a circuit judge or a district judge holding the circuit should determine that a statute of Congress has invalid, the United States is without means of having that matter submitted to a tribunal that under the Constitution has power to settle that question. I do not believe the remedy ought to be any wider than the mischief that has been disclosed. I do not believe that any additional advantages ought to be given to the General Government in the prosecution of persons arraigned in court, but I do believe the paragraph ought to be perfected in that behalf, so as to provide that there shall be an appeal to the court having authority to give uniformity to the practice which shall prevail in all the courts of the United States, and that they shall be ready to say, and say promptly, what the statute means and whether or not it is a valid statute.
'So I think this amendment gives expression to the proposition that the remedy we provide here now should be no wider than the defect that has been disclosed in the preceding criminal procedure; and that is that whenever the validity of a statute has been adversely decided by a trial court, wherever its unconstitutionality has been pronounced by a trial court, the Government ought to have the right to promptly submit that to the tribunal having authority to dispose of such questions in order that there may be a uniform enforcement of the law throughout the entire limits of the United States.
'This is the purpose I have, Mr. President, and having discussed it with the distinguished Senator from Wisconsin * * * and the distinguished Senator from Minnesota (Mr. Nelson), we agreed that that would probably meet the defect.' 41 Cong.Rec. 2819-2820.
See generally 41 Cong.Rec. 2819-2822.
The bill as thus amended passed the Senate; the House disagreed to the Senate amendment, but yielded in conference. The bill in conference was amended to provide for direct appeals to the Supreme Court. See H.R.Conf.Rep.No. 8113, 59th Cong., 2d Sess. (1907). No explanation was given in the conference report for the exclusive direct appeal route.
I draw from these legislative materials the following relevant propositions: (1) The Congress was definitely advertent to the existence of a Governmental appeal right in criminal cases within the District; (2) the Congress explicitly rejected the simple approach of extending the D.C. provision to the Nation; (3) the particular provision of the Act relied on by the Government as supporting its direct appeal in this case was amended with a view to limiting its reach to a relatively precise defect, i.e., the debilitating effect on the enforcement of criminal laws arising from conflicting judicial interpretations; and (4) the substitution of an exclusive direct appeal to this Court, while not expressly explained, is perfectly compatible with the goal of promptly achieving uniformity in construction of statutes applicable nationwide, while at the same time being wholly unnecessary to the resolution of conflicting district court constructions of local D.C. statutes, given the existence of a right of appeal to the Court of Appeals for the District of Columbia Circuit.
The question of overlap between the appellate routes available to the Government in criminal cases under the D.C.Code and 18 U.S.C. § 3731 was first dealt with by this Court in United States v. Burroughs, 289 U.S. 159, 53 S.Ct. 574, 77 L.Ed. 1096 (1933). In Burroughs the defendants were indicted in the then Supreme Court of the District of Columbia for violation of the Federal Corrupt Practices Act, a statute of nationwide applicability. They successfully demurred on two grounds: one involving the construction of the statute, and the other involving the sufficiency of the indictment as a pleading. The Government took an appeal to the Court of Appeals for the District of Columbia under the D.C. appeals statute. The appellate court certified to this Court the question whether it had jurisdiction over an appeal where a § 3731-type challenge was joined with a challenge to the sufficiency of the indictment as a pleading. The Court disposed of the question by holding that the Criminal Appeals Act is inapplicable to any criminal case appealable under the provisions of the D.C.Code:
'The Criminal Appeals Act in naming the courts from which appeals may be taken to this court employs the phrase 'district courts'; not 'courts of the United States,' or 'courts exercising the same jurisdiction as district courts.' We need not, however, determine whether the statute should be construed to embrace criminal cases tried in the Supreme Court of the District if section 935 of the District Code were not in effect. That section deals comprehensively with appeals in criminal cases from all of the courts of first instance of the District and confers on the Court of Appeals jurisdiction of appeals by the Government seeking review of the judgments of those courts. The Criminal Appeals Act, on the other hand, affects only certain specified classes of decisions in district courts, contains no repealing clause, and no reference to the courts of the District of Columbia or the territorial courts, upon many of which jurisdiction is conferred by language quite similar to that of the Code of Law of the District. We cannot construe it as impliedly repealing the complete appellate system created for the District of Columbia by section 935 of the Code 1901 in the absence of expression on the part of Congress indicating that purpose. Implied repeals are not favored, and if effect can reasonably be given to both statutes the presumption is that the earlier is intended to remain in force. * * *' 289 U.S., at 163-164, 53 S.Ct., at 576-577. (Emphasis added.)
The holding in Burroughs established a complete separation of the two statutory schemes for Government appeals in criminal cases; the essence of the Court's rationale was a presumption against implied repeals.
In 1942, Congress amended the Criminal Appeals Act to provide for Government appeals to the Courts of Appeals from all decisions dismissing indictments or arresting judgments of convictions except where a right of direct appeal to this Court exists. 56 Stat. 271. The new amendment expressly included the United States Court of Appeals for the District of Columbia Circuit as one of the intermediate appellate tribunals to which the Government could appeal; in addition, the Act added a new provision to the Judicial Code establishing appellate jurisdiction in the then circuit courts of appeals 'in Criminal Cases on appeals taken by the United States in cases where such appeals are permitted by law.' 56 Stat. 272. The latter provision also expressly incorporated the United States Court of Appeals for the District of Columbia Circuit. Ibid.
The legislative history of the 1942 amendment offers no explication of congressional intent in including the D.C. courts within the Act. It is certain that this amendment generates some form of overlap between the two statutory schemes for Governmental appeals in criminal cases. In Carroll v. United States, 354 U.S. 394, 411, 77 S.Ct. 1332, 1342, 1 L.Ed.2d 1442 (1957), the Court recognized the new situation created by the 1942 amendment:
'It may be concluded, then, that even today criminal appeals by the Government in the District of Columbia are not limited to the categories set forth in 18 U.S.C. § 3731, although as to cases of the type covered by that special jurisdictional statute, its explicit directions will prevail over the general terms of (the D.C. statute) * * *.'
That, however leaves open the question which cases come within the categories set forth in 18 U.S.C. § 3731.
After this Court's holding in Burroughs, it was clear that if Congress wished to effectuate any displacement of the pre-1907 route for Government appeals of criminal cases within the District of Columbia, some express manifestation of its intent was required. The 1942 amendment followed the Burroughs decision. Since Congress then acted to create some overlap between the two statutes without further limiting the categories of directly appealable criminal cases, it may be argued that we should presume Congress intended, as of 1942, to embrace within the very special appeals procedures of 18 U.S.C. § 3731 criminal cases based upon statutes applicable only within the District.
But that presumption from a completely silent legislative record flies in the face of the principle that statutes creating a right of direct appeal to this Court should be narrowly construed. Cf. Swift & Co. v. Wickham, 382 U.S. 111, 128-129, 86 S.Ct. 258, 267-268, 15 L.Ed.2d 194 (1965); Florida Lime & Avocado Growers v. Jacobsen, 362 U.S. 73, 92-93, 80 S.Ct. 568, 579-580, 4 L.Ed.2d 568 (1960) (Frankfurter, J., dissenting). And, in light of the legislative history of the 1907 Act and this Court's explicit holding in Burroughs that the 1907 Act had no impact on cases appealable under the D.C. provision, it is especially inappropriate to rely on the absence of any further limiting language in the 1942 amendment as a justification for reading the term 'statute' as encompassing criminal prosecutions in the District based on local as well as nationwide statutes.
The legislative history of the 1907 Act suggests a perfectly plausible reason for interpreting the language 'based upon the invalidity or construction of the statute' as excluding D.C. statutes: that language was put in the Act by Senator Clarke with the express intention of limiting the Act's goal to remedying the precise defect of inconsistent enforcement of criminal statutes arising from the lack of a Government appeal. The Court of Appeals for the District of Columbia constitutes a perfectly adequate appellate tribunal for resolving conflicting interpretations given local statutes by judges within the District of Columbia. Where, however, the Government brings a prosecution in the District of Columbia based on a statute of nationwide applicability, the Court of Appeals for the District of Columbia Circuit cannot achieve uniformity in the enforcement of the statute.
As an original proposition, then, a construction of the relevant provisions of the 1907 Act as excluding criminal cases in the District brought under local statutes but including cases brought under nationwide statutes would have been consistent both with the express purpose of Senator Clarke's amendment and the canon of strict construction as applied to direct appeals statutes. But the Court in Burroughs took the position that Congress could not displace the pre-existing appellate route to any extent without indicating an express intent to do so; Burroughs, significantly, involved a prosecution under a statute of nationwide applicability. Subsequently, Congress did expressly indicate an intent to displace the alternative appellate route available within the District. The extent of that displacement, I think, should now be measured by the express goal of the relevant provision of the 1907 Act, as limited by Senator Clarke: avoidance of inconsistent enforcement of criminal laws. That theory of legislative purpose-combined with the Burroughs holding that Congress should be required to affirmatively indicate an intent to displace the prior appellate route-yields an interpretation of the 1907 Act as amended in 1942 which is consistent with the canon of strict construction generally applied to direct appeals statutes.
I have little doubt that, had the Criminal Appeals Act not been recently amended to dispense with direct appeals to this Court, see n. 1, supra, the interpretation of the Act I have suggested would be adopted by the Court. This Court has never taken jurisdiction over a direct appeal from a dismissal of a prosecution brought in the District of Columbia for violation of a statute applicable within the District. It is worth noting that, given the Court's adherence to the principles of Carroll v. United States, supra, the rather absurd waste of our judicial resources on cases such as United States v. Waters, 84 U.S.App.D.C. 127, 175 F.2d 340, appeal dismissed on motion of the United States, 335 U.S. 869, 69 S.Ct. 168, 93 L.Ed. 413 (1948), and United States v. Sweet, 399 U.S. 517, 90 S.Ct. 1958, 26 L.Ed.2d 770 (1970), see n. 8, supra, could not even be avoided by the exercise of governmental discretion in choosing appellate routes. In light of Carroll, I cannot believe that a perfectly acceptable reading of congressional purpose underpinning the definition of categories of cases directly appealable under 18 U.S.C. § 3731 which excludes statutes applicable only within the District of Columbia would have been turned down by the Court.
Of course, the recent elimination of the direct appeal route removes a greatdeal of the incentive to continue the stringent standards of construction with respect to this statute that have traditionally prevailed in this Court. Indeed, at this stage of the game, the canon of strict construction produces the ironic result of compelling a relatively greater expenditure of judicial energies in assessing our jurisdiction over the remainder of the criminal cases pending in the district courts of the Nation at the time of the most recent amendment than would be involved in deciding those cases on the merits. Nonetheless, this very Term we have indicated that we intend to adhere to the rules of construction evolved by this Court during the long and tortuous history of this statute. United States v. Weller, 401 U.S. 254, 91 S.Ct. 602, 28 L.Ed.2d 26 (1971).
The only response we are offered to the reading of congressional purpose I have suggested is that the interests of avoiding inconsistent enforcement of criminal laws argues for exercising jurisdiction over this case because similar statutes in other jurisdictions are under attack on vagueness grounds. See the Court's opinion, at 65-66. Surely those of my Brethren who subscribe to the views on jurisdiction expressed in the opinion of the Court must recognize that we cannot limit the category of appealable cases under this provision of the Act to prosecutions brought under D.C. statutes which are (a) duplicated in other jurisdictions, and (b) under attack on similar federal question grounds in other jurisdictions. The proffered response is, therefore, not truly a reason for concluding we have jurisdiction over the relevant category of cases; rather, it is a reason for exercising our power in this one case to settle Dr. Vuitch's vagueness claim in spite of the absence of the jurisdictional prerequisites which legitimize the exercise of that judicial power.
Having concluded that the Government cannot directly appeal the dismissal of the indictments to this Court under the provisions of 18 U.S.C. § 3731, it also follows that we cannot utilize the remand provisions of that statute to reroute the appeal to the Court of Appeals for the District of Columbia Circuit. However, we do have jurisdiction to determine our jurisdiction, and, in the analogous three-judge court situation where an alternative appellate route exists but the statute according this Court direct jurisdiction over the certain appeals includes no remand procedure, this Court has vacated the judgment of the court of original jurisdiction and remanded the case to that court for the entry of a fresh decree from which timely appeal may be taken to the proper appellate tribunal. Rockefeller v. Catholic Medical Center of Brooklyn & Queens, 397 U.S. 820, 90 S.Ct. 1517, 25 L.Ed.2d 806 (1970). The instant case, of course, is a criminal prosecution, and there is a consideration not present in the three-judge court situation: i.e., the additional anxiety caused the defendant by virtue of the Government's erroneous choice of appellate routes. But, while 18 U.S.C. § 3731 cannot empower us to transfer the case, that statute is still relevant as an expression of congressional policy to save the Government's appeal where an erroneous choice of appellate routes is made, even at the expense of additional anxiety to the defendant. Accordingly, I think the proper disposition of this case would be to vacate the judgment of the District Court and remand the case for the entry of a fresh judgment from which the Government could take a timely appeal to the Court of Appeals for the District of Columbia Circuit pursuant to D.C.Code Ann. § 23 105.
Notwithstanding the views on jurisdiction expressed above, and speaking only for myself, and not for those of my Brethren who agree with my discussion of the jurisdictional issue in this case, I have concluded, substantially for the reasons set forth in Mr. Justice BLACKMUN's separate opinion, that I should also reach the merits. Accordingly, I concur in Part II of the Court's opinion and the judgment of the Court.

## Notes

* ↑ The text of 18 U.S.C. § 3731 was as follows:
* ↑ The bill had been amended earlier to require the Government to take an appeal within 30 days. 41 Cong.Rec. 2193 2194.
* ↑ The Court's opinion characterizes Burroughs as having 'held only that the term 'district court' in the Criminal Appeals Act did not include the then-existing Supreme Court of the District of Columbia.' Ante, at 65. As I read the italicized portion of the above-quoted passage, that is the precise question that the Burroughs Court concluded it did not have to decide, in light of its holding that the Criminal Appeals Act could not, by implication, effect the repeal of § 935 of the District Code.
* ↑ These explicit references were subsequently omitted by amendment in 1949, 63 Stat. 97, which altered the language of the statute to conform to the changed nomenclature of the federal courts.
* ↑ This last provision was an amendment to 28 U.S.C. § 225 (1940 ed.); see 56 Stat. 272 and Carroll v. United States, supra, 354 U.S., at 398 n. 5, 77 S.Ct., at 1335.
* ↑ The focus was on the decision to accord the Government a right of appeal to the courts of appeals where no direct appeal to this Court lay. See H.R.Rep.No.45, 77th Cong., 1st Sess. (1941); S.Rep.No. 868, 77th Cong., 1st Sess. (1941).
* ↑ The Government suggests a construction of the Criminal Appeals Act excluding D.C. statutes would require the Court to exclude other criminal statutes of only limited territorial application, e.g., 18 U.S.C. §§ 1111-1112 (punishing homicide '(w)ithin the special maritime and territorial jurisdiction of the United States'); 18 U.S.C. §§ 1151-1165 (regulating offenses within Indian territory). See Brief for the United States 15-16. But I would not construe 18 U.S.C. § 3731 as excluding D.C. criminal cases punishable under D.C. statutes because they are of limited territorial application; rather, the point is that given the existence of a prior right of Government appeal, the risks of disuniformity which Senator Clarke described the statute as intended to cure do not exist.
* ↑ The Government suggests, in its Supplemental Memorandum for the United States 6-7, that a construction of the 1907 Act excluding statutes applicable only within the District of Columbia from the scope of the first two provisions leads to the 'anomalous consequence' that 18 U.S.C. § 3731 would still allow a direct appeal in a D.C. case where the motion-in-bar provision is concerned. E.g., United States v. Sweet, 399 U.S. 517, 90 S.Ct. 1958, 26 L.Ed.2d 770 (1970). The alleged 'anomaly' would seem to argue for the conclusion that D.C. cases involving the motion-in-bar provision are not directly appealable
* ↑ The Government relies principally on Shapiro v. Thompson, 394 U.S. 618, 625 n. 4, 89 S.Ct. 1322, 1326, 22 L.Ed.2d 600, (1969), as supporting its construction of the generic reference to 'statutes' in 18 U.S.C. § 3731 to include statutes applicable only within the District of Columbia. Shapiro dealt with 28 U.S.C. § 2282, which requires a three-judge court to hear requests for injunctions against the enforcement of 'any Act of Congress' when the ground for the requested relief is the alleged unconstitutionality of the Act. Decisions of such three-judge courts are, under the circumstances set forth in 28 U.S.C. § 1253, directly appealable to this Court. In Shapiro, the Court noted at least one prior instance where the Court had taken jurisdiction over a case involving a statute applicable only within the District and then stated: 'Section 2282 requires a three-judge court to hear a
challenge to the constitutionality of 'any Act of Congress.' We see no reason to make an exception for Acts of Congress pertaining to the District of Columbia.' 394 U.S., at 625 n. 4, 89 S.Ct., at 1326 (emphasis in original).
The Shapiro approach is obviously inappropriate for the present problem. First, despite the Government's assertion to the contrary, see Brief for the United States 15, the phrase 'any Act of Congress' is arguably broader than a generic reference to 'statutes.' Indeed, the Shapiro Court explicitly chose to emphasize the presence of the word 'any' in the relevant portion of that statute. Second, while an exercise of jurisdiction in a case where jurisdiction is not challenged is of little precedential value, the Court in Shapiro still chose to take note of such a prior case; in the present context, this Court has never taken jurisdiction of a § 3731 appeal involving a statute applicable only within the District.
Third, and most importantly, Congress at the time of the three-judge court Acts altered the principles of both original and appellate jurisdiction for the substantive categories of litigation involved; the new procedural routes reflect crucial considerations of comity between sovereigns and among the branches of the Federal Government. See generally Currie, The Three-Judge District Court in Constitutional Litigation, 32 U.Chi.L.Rev. 1 (1964). There is no legislative history supporting the notion that the new procedures were narrowed to alleviate particular defects of inconsistent constitutional interpretation due to the absence of any appellate route for the substantive categories of cases to be included within the Act.
In these circumstances, it is fair to conclude that the principle of strict construction applicable to such statutes must yield to the 'inert language' of the statute. Cf. Florida Lime & Avocado Growers v. Jacobsen, 362 U.S. 73, 92, 80 S.Ct. 568, 579, 4 L.Ed.2d 568 (1960) (Frankfurter, J., dissenting).
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