Argued January 24, 1973.
Decided February 2, 1973.
John O. Olson, U.S. Atty., Eric J. Wahl, Asst. U.S. Atty., Madison, Wis., for plaintiff-appellant.
David Heitzman, Madison, Wis., for defendant-appellee.
Appeal from the United States District Court for the Western District of Wisconsin.
Before SWYGERT, Chief Judge, DUFFY, Senior Circuit Judge, and STEVENS, Circuit Judge.
Defendant was indicted on March 24, 1971, for failing to report for induction on August 7, 1968. Pursuant to defendant's discovery motion, on February 11, 1972, the district court ordered the government to produce Selective Service System form 261 for June 13, 1968, and SSS forms 200 and 201 for three months prior to the issuance of defendant's order to report for induction. The purpose of the discovery order was to give defendant the opportunity to ascertain whether he had a valid defense based on the possibility that the Board's quota had been filled, or that he had been called out of order. The records which the government was ordered to produce had, however, been destroyed pursuant to existing Selective Service Regulations. When this fact was brought to the attention of the district court, on April 20, 1972, he dismissed the indictment. The government has appealed form that order.
We are confronted at the outset by defendant's suggestion that our en banc decision in United States v. Ponto, 454 F.2d 657 (1971), requires dismissal of the appeal. As in Ponto and its companion cases, this indictment was sufficient on its face; the order of dismissal was predicated on facts brought to the court's attention after the indictment was returned and before a jury had been impaneled. See United States v. Brewster, 408 U.S. 501, 506, 92 S.Ct. 2531, 33 L.Ed.2d 507.
The government does not contend that this case is factually distinguishable from Ponto. It correctly points out that Ponto arose prior to the amendment of the Criminal Appeals Act which became effective on January 2, 1971, whereas the amended statute is applicable to this appeal. See 84 Stat. 1880, 1890. But our decision in Ponto rested on two independent grounds, one statutory and one constitutional. Assuming arguendo that the statutory analysis is not applicable to the amended act, it is nevertheless perfectly clear that the constitutional analysis in Ponto compels the conclusion that the order of April 20, 1972, was an acquittal from which the government may not appeal. See 454 F.2d at 663-664; see also United States v. Gustavson, 7 Cir., 454 F.2d 677, 678. The government's arguments to the contrary merely restate the reasoning of the dissenting opinion in Ponto which was squarely rejected by the en banc majority. See 454 F.2d at 667.
The appeal is