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Dissenting Opinion

United States Supreme Court

401 U.S. 254

United States  v.  Weller

 Argued: Dec. 10, 1970. --- Decided: Feb 24, 1971


Appellee, who claimed conscientious objector status, was refused representation by his attorney at the time of his personal appearance before his draft board on the basis of a Selective Service regulation prohibiting such representation. Subsequently indicted for refusing to submit to induction, appellee filed a motion to dismiss, contending that the denial of counsel had deprived him of due process. The District Court granted appellee's motion on the ground that the regulation was not authorized by the Military Selective Service Act of 1967. The United States filed a notice of appeal to this Court, but, after reconsidering and concluding that this Court lacked jurisdiction to entertain its direct appeal from the District Court's order, the United States moved for a remand to the Court of Appeals. Appellee contends that the 'construction of the statute' dismissal provision or the 'motion in bar' provision of the Criminal Appeals Act gives this Court jurisdiction of the appeal. Held:

1. This Court has no jurisdiction of the appeal under the 'construction of the statute' provision since the interrelation of the regulation and the statute fell short of that required for the dismissal to have been based upon the construction of the statute. United States v. Mersky, 361 U.S. 431, 80 S.Ct. 459, 4 L.Ed.2d 423, distinguished. Pp. 257-259.

2. The 'motion in bar' provision applies only when a defendant, while not denying the commission of the offense, claims that an extraneous factor forecloses prosecution. That provision is inapplicable here since appellee contends that his refusal to submit to induction was not a crime because of the denial of counsel by his draft board. Pp. 259-261.

309 F.Supp. 50, remanded.

James van R. Springer, Washington, D.C., for appellant.

Marvin M. Karpatkin, New York City, for appellee.

Mr. Justice STEWART delivered the opinion of the Court.


This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).