United States v. Thomas William Weller

The appellee, Thomas Weller, was indicted in January of 1969, by a federal grand jury for refusing to submit to induction in violation of 50 U.S.C. App. § 462. The defense moved to dismiss the indictment pursuant to Rule 12 of the Rules of Criminal Procedure. On September 19, 1969, the district court granted the motion to dismiss. The district court judge stated as the grounds for his decision that he was “loathe to hold” that the Selective Service Regulation ( 32 C.F.R. § 1624.1 (b)), under which Weller was administratively denied representation by counsel in his appearance before the local board, “is either authorized by Congress or is constitutional.” United States v. Weller, 309 F.Supp. 50, 56 (N.D.Cal.1969).

The Government filed an appeal with the United States Supreme Court pursuant to 18 U.S.C. § 3731 . Having reconsidered its position, the Government sought to have the case remanded on the grounds that the Supreme Court lacked jurisdiction over the appeal. The Court postponed consideration on the matter of jurisdiction until the hearing on the merits of the case. The Supreme Court concluded that the appeal was not properly before it and remanded the case to this court.…