United States v. Weller

PETITIONER: United States
LOCATION: United States Court of Appeals for the Firth Circuit

DECIDED BY: Burger Court (1970-1971)
LOWER COURT: United States Court of Appeals for the Ninth Circuit

CITATION: 401 US 254 (1971)
ARGUED: Dec 10, 1970
DECIDED: Feb 24, 1971

Facts of the case


Media for United States v. Weller

Audio Transcription for Oral Argument - December 10, 1970 in United States v. Weller

Warren E. Burger:

We'll hear arguments in number 77, United States against Weller.

Mr. Springer, you may proceed whenever you're ready.

James Van R. Springer:

Mr. Chief Justice and may it please the Court.

The question on the merits of this case is the validity of the Selective Service Regulation that says that a registrant may not be represented by a lawyer when he has his personal appearance before his Local Draft Board.

The appellee, Weller, was classified I-A after such a personal appearance or rather his I-A classification was retained, going to the procedures after a bit, after such a personal appearance, but he refused to submit to induction when he was ordered to report by the Board and, accordingly, he was indicted.

The District Court dismissed the indictment before trial based on a motion filed, actually before there was a plea to the indictment, on the ground that Weller's lack of counsel at the personal appearance invalidated the order to report and, the United States has appealed from that order, dismissing the indictment.

But before the Court might reach the merits, there is a threshold question of appellate jurisdiction.

There's no doubt that the government can appeal this dismissal order of the District Court to some Court.

The question is, and it's a difficult one under the Criminal Appeals Act, whether the appeal should be to this Court or to the Court of Appeals initially.

William J. Brennan, Jr.:

Tell me, Mr. Springer, we would give him a rather welcome use to which fact something was being done by the Congress for the Criminal Appeals Act.

Where does that stand, do you know?

James Van R. Springer:

I understand, I don't have a report as to what has happened this morning.

The report I had yesterday afternoon is that a Bill, in which the Senate has adopted in substance the government's proposal to clear up this area, is now before a Conference Committee.

The House has not passed it.

It's a matter of getting it through the Conference Committee and then having it passed by the House.

William J. Brennan, Jr.:

So it may happen within next week or so we hope?

James Van R. Springer:

Yes, it may, Mr. Justice.

I'm told that it is unlikely however that it would be intended to be retroactive to cases pending on appeal.

That may be an issue that will come back to--

William J. Brennan, Jr.:

We won't have to suffer with it much longer if something is passed?

James Van R. Springer:

We can hope not.

William J. Brennan, Jr.:

I hope we don't get the same new problems with the same order?

Warren E. Burger:

Is the Solicitor General's office still of the view that this case should be in the Court of Appeals and not here?

James Van R. Springer:

Yes, very much so, Mr. Chief Justice.

And of course I will get into that, although, of course, we initially filed a notice of appeal to this Court on further reflection.

The Solicitor General concluded that the case was one that should be in the Court of Appeals and he --

William J. Brennan, Jr.:

Do you have a protected appeal pending?

James Van R. Springer:

That would not be necessary, Mr. Justice Brennan, because of the provision in the Criminal Appeals Act that says if an appeal is improperly brought here --

William J. Brennan, Jr.:

You transfer it?

James Van R. Springer:

It should be “remanded” is the word, but if you -- of course we filed, in lieu of a jurisdictional statement, we filed something called a motion to remand, and the Court has deferred the issue of jurisdiction until this time.