Serfass v. United States - 420 U.S. 377, 95 S. Ct. 1055 (1975)

Rule:

In the case of a jury trial, jeopardy attaches when a jury is empaneled and sworn.

Facts:

Petitioner, who had submitted a post-induction order claim for conscientious objector status to his local board, was later indicted for willful failure to report for and submit to induction into the Armed Forces. He filed a pretrial motion, accompanied by an affidavit, to dismiss the indictment on the ground that the local board did not state adequate reasons for refusing to reopen his file, and a motion to postpone the trial "for the reason that a Motion to Dismiss has been simultaneously filed and the expeditious administration of justice will be served best by considering the Motion prior to trial." The District Court dismissed the indictment, noting that the material facts were derived from the affidavit, petitioner's Selective Service file, and a stipulation that the information petitioner had submitted to the board "establishes a prima facie claim for conscientious objector status based upon late crystallization." The court held that dismissal of the indictment was appropriate because petitioner was entitled to full consideration of his claim before he was assigned to combatant training and because the local board's statement of reasons for its refusal to reopen petitioner's file was "sufficiently ambiguous to be reasonably construed as a rejection on the merits, thereby prejudicing his right to in-service review." The Government appealed under 18 U. S. C. § 3731. The Court of Appeals, rejecting petitioner's contention that it lacked jurisdiction under § 3731 because the Double Jeopardy Clause barred further prosecution, reversed.

Issue:

Does the Double Jeopardy Clause bar an appeal by the United States under 18 U. S. C. § 3731 from a pretrial order dismissing an indictment?

Answer:

No.

Conclusion:

The court affirmed the order that denied his motion, finding that petitioner's double jeopardy rights had not attached because he had not been put to trial before the trier of facts on the charge against him. The court concluded that petitioner had not waived his right to a jury trial and that the most the district court had authority to do was rule on his motion to dismiss and not to determine his guilt or innocence. Under such circumstances, his double jeopardy rights were not violated.