United States v. Apex Distributing Co.

Prior to trial the district court entered orders dismissing these two criminal actions. The Government appealed. Defendants, asserting that this court is without jurisdiction, have moved to dismiss the appeals. These motions are the only matters now before us. For the reasons hereinafter stated, the motions to dismiss the appeals are granted.

All of the defendants were indicted under 18 U.S.C.A. §§ 201 and 202, for allegedly giving and taking bribes in connection with the purchase of naval supplies. All of the defendants except John E. Moeller were also indicted under 18 U.S.C.A. § 371 , for assertedly engaging in a conspiracy to defraud the United States.

Defendants in both cases, purporting to invoke Rules 16 and 17(c), Federal Rules of Criminal Procedure, 18 U.S. C.A., moved for subpoenas duces tecum and orders requiring the United States to produce certain materials before trial. The materials demanded included all documents, books, papers, and objects obtained by Government counsel in any manner (a) in the course of the grand jury investigation and (b) in the course of the Government’s preparation for the *749 trial, if such materials were presented to the grand jury or…

This is not a dissent, although it may sound like one. I must concede that there is plenty of modern authority for what the court does here, namely, take the perfectly plain language of a statute and by reference to its legislative history come up with a result which says that the statute does not mean what it says. The conclusion is reached that § 3731 “must be regarded as having the same scope as the 1942 form of the statute.”

The relevant part of § 3731 contains language which seems, plainly and unambiguously to authorize this appeal. It says, in so many words, that the United States may appeal “from a decision or judgment setting aside, or dismissing any indictment or information, or any count thereof except where a direct appeal to the Supreme Court of the United States is provided by this section.”

Twenty-five years ago a Congressman observing a perfectly plain provision in a bill on his desk did not need to do anything more than decide if he liked what the bill said and vote accordingly. But today, under the current fashion of things, the Congressman can do no such thing. He cannot tell what he is voting for until he either (a) finds in the accompanying committee report…

I concur. However I am in full accord with Judge POPE’S comments.

(concurring).

I concur in Judge HAMLEY’S opinion and in Judge CHAMBERS’ concurring opinion.

(concurring).

I concur in the foregoing opinion of Judge HAMLEY. I desire to state (and I am sure neither Judge HAMLEY nor the court is resolving the point against me) that it is my view that we deal in this case with “jurisdiction” in the sense of whether it would be erroneous for us to act, not in the sense of naked power to act.

While I believe the statute should give the government a right to appeal in cases like these (and I do think the statute on its face tends to so indicate), I am nonetheless of the opinion that Judge Ham-ley has correctly analyzed the authorities of today.