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will usually be the party prosecuting the appeal from a decision invalidating a federal statute. But any other losing party, whether of a private or a non-federal public nature, has equal standing to appeal. See United States v. Bekins, 304 U. S. 27, where a municipal taxing agency as well as the Government took an appeal.

Appeals in criminal cases

The Criminal Appeals Act (now 18 U.S.C. §3731) permits the United States to appeal directly to the Supreme Court from certain types of adverse decisions of district courts in criminal cases. The right to appeal to the Supreme Court is granted:

(1) Where a district court decision setting aside or dismissing an indictment or information or arresting a judgment of conviction is based upon the invalidity of the statute underlying the indictment or information;

(2) Where such a district court decision is based upon a construction of the statute underlying the indictment or information; and

(3) Where the district court decision sustains a special plea in bar "when the defendant has not been put in jeopardy."

The statutory provision is printed in full at pp. 501-2, infra.

The Supreme Court has frequently stated that the "exceptional right of appeal given to the Government by the Criminal Appeals Act is strictly limited to the instances specified." United States v. Borden Co., 308 U. S. 188, 192. See also United States v. Keitel, 211 U. S. 370, 399; United States v. Dickinson, 213 U. S. 92, 103.

In United States v. Borden Co., 308 U. S. 188, 193, the Supreme Court has summarized the general principles it will

follow in the exercise of its jurisdiction with respect to appeals taken because the district court decision is grounded upon the invalidity or construction of the statute underlying the indictment or information.

(a) "Appeal does not lie from a judgment which rests on the mere deficiencies of the indictment as a pleading, as distinguished from a construction of the statute which underlies the indictment." See also United States v. Hastings, 296 U. S. 188, 192-194. If such a ruling is appealed, the Court will refer it to the appropriate court of appeals in accordance with the legislative scheme. See United States v. Swift & Co., 318 U. S. 442; United States v. Maryland & Virginia Milk Producers Association, 335 U. S. 802. A similar referral may result if it is unclear whether the district court judgment is based on the construction of the statute or on some non-reviewable ground, although the Court itself has the power to attempt to unravel the ambiguities and then to treat the case accordingly.

(b) "Nor will an appeal lie in a case where the District Court has considered the construction of the statute but has also rested its decision upon the independent ground of a defect in pleading which is not subject to our examination. In that case we cannot disturb the judgment and the question of construction becomes abstract." Thus the right to appeal to the Supreme Court is limited to situations where the decision below is based solely on the invalidity or construction of the statute. United States v. Hastings, 296 U. S. 188, 193; United States v. Wayne Pump Co., 317 U. S. 200. Where there are alternative holdings, one of which is non-reviewable, the case is properly appealable only to the appropriate court of appeals.

(c) "This Court must accept the construction given to the indictment by the District Court as that is a matter we are not authorized to review." See also United States v. Classic, 313 U. S. 299; United States v. Carbone, 327 U. S. 633.

(d) "When the District Court holds that the indictment, not merely because of some deficiency in pleading but with respect to the substance of the charge, does not allege a violation of the statute upon which the indictment is founded, that is necessarily a construction of that statute." See also United States v. Patten, 226 U. S. 525, 535; United States v. Cohn, 270 U. S., 339, 342-343; United States v. South-Eastern Underwriters Ass'n., 322 U. S. 533. It is also established that a construction of the appropriate statute to which the indictment has reference is involved when the district court disregards that statute and fails to apply its terms to the facts set forth in the indictment (United States v. Malphurs, 316 U. S. 1), or when the court holds that the indictment does not charge an offense under any federal statute (United States v. Nixon, 235 U. S. 231, 235).

(e) "When the District Court has rested its decision upon the construction of the underlying statute this Court is not at liberty to go beyond the question of the correctness of that construction and consider other objections to the indictment. The Government's appeal does not open the whole case." See United States v. Petrillo, 332 U. S. 1, 5. Should the Court find in favor of the United States on the question appealed, the district court is usually free thereafter to consider other objections to the indictment. United States v. New South Co., 241 U. S. 64, 73.

In an appeal "from the decision or judgment sustaining a motion in bar, when the defendant has not been put in jeopardy," it is necessary only (1) that the motion in bar be sustained by the district court, whatever form such a motion may take, and (2) that the defendant shall not have been put in jeopardy, as where the case has gone to trial. A motion in bar is one to bar the prosecution for such reasons as the statute of limitations (United States v. Goldman, 277 U. S. 229, 236), double jeopardy (United States v. Lanza, 260 U. S. 377),

"former acquittal, former conviction or pardon" (United States v. Murdock, 284 U. S. 141, 151), and immunity because of prior compelled testimony (United States v. Monia, 317 U. S. 424). It is not here necessary that the district court shall have dealt with the validity or construction of the statute underlying the indictment; in fact, any such issue is outside the scope of the Supreme Court's review of a judgment sustaining a motion in bar. United States v. Kissel, 218 U. S. 601. The Court considers itself precluded from review of anything but "the precise question decided by a trial court in sustaining a special plea in bar." United States v. Celestine, 215 U.S. 278,283.

It is to be noted that an appeal from a decision based upon the invalidity or construction of the underlying statute can arise when defendant raises the question by motion prior to trial or for arrest of judgment after conviction. But once a verdict is rendered in favor of the defendant, the United States may not appeal. The former statute, 18 U.S.C. (1946) §682, made this point explicit by providing that the Government could not take an appeal "in any case where there has been a verdict in favor of the defendant." See United States v. Weissman, 266 U. S. 377. Although this provision does not appear in the revision now codified as 18 U.S.C. (1948) §3731, the limitations upon the right to appeal coupled with the principle of double jeopardy strongly suggest that the provision was omitted as unnecessary.

The appeal permitted the United States in criminal cases has been construed to include informations brought by the United States to punish criminal contempts. United States v. Goldman, 277 U. S. 229. An appeal will probably also lie under 18 U.S.C. §3731 where a single judgment of contempt contains "an admixture of criminal and civil elements" (Penfield Co. v. S.E.C., 330 U. S. 585, 591) but not where they are purely civil (id.).

Suits by the United States to enforce the Antitrust Laws, the Interstate Commerce Act, and Title II of the Federal Communications Act.

All civil actions by the United States to enforce the antitrust laws, the Interstate Commerce Act, and Title II of the Federal Communications Act are appealable, after final judgment, directly to the Supreme Court. Under the Expediting Act of 1903 (32 Stat. 823), now embodied in identical form in 15 U.S.C. §§28-29 and 49 U.S.C. §§44-45 (as amended by §17 of the Act of June 25, 1948, 62 Stat. 989), such cases under the antitrust laws and the Interstate Commerce Act are to be heard by a district court of three judges when the Attorney General files an expediting certificate. But whether the case is heard by one judge (as most such cases are) or three, the appeal lies only to the Supreme Court. The present statute provides:

"In every civil action brought in any district court of the United States under any of said Acts, wherein the United States is complainant, an appeal from the final judgment of the district court will lie only to the Supreme Court."

These provisions of the Expediting Act are also made applicable by 47 U.S.C. §401 (d) to civil suits to enforce Title II (the carrier provisions, 47 U.S.C. §§201-222) of the Federal Communications Act.

The statute provides for appeals to the Supreme Court only from final judgments of the district court. This does not mean, of course, that a party may appeal to a court of appeals from interlocutory orders. Appeals in such cases lie only to the Supreme Court, and only from final orders. United States v.

Where the case is heard by three judges, the final judgment is also appealable under 28 U.S.C. §1253.

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