Before MARIS, KALODNER and STALEY, Circuit Judges.
Appellees, by their motion to dismiss, have raised the issue as to whether this Court has jurisdiction to entertain the government's appeals from Orders of the trial court dismissing, for want of prosecution, four criminal indictments against the appellees for wilful evasion of income taxes.
The Orders were made after a hearing, on appellees' motions, seeking among other things, bills of particulars and "a speedy trial", at which government counsel had stated that because preceding orders*fn1 suppressing evidence had "virtually wiped out substantially all the Government's evidence * * * we are not ready for trial, and we will not be ready for trial in the foreseeable future."
The appellees premise their motion to dismiss on grounds which may be summarized as follows: (1) the government "suggested, openly invited, and in substance and effect, moved for and consented to" the dismissal Orders; (2) the government failed to take exception to the Orders as required by Rule 51 of the Federal Rules of Criminal Procedure, 18 U.S.C.A. and (3) the appeals are not authorized by statute.
In reply, the government, in its brief, asserts (1) the Orders of dismissal were entered by the Court below sua sponte in exercise of its authority under Rule 48 (b) of the Federal Rules of Criminal Procedure "because of the Government's conceded inability to bring the appellees to trial without unnecessary delay"; (2) "the prosecutor's indication of hope that the District Court would dismiss the cases so that the Government might make an effort to appeal the court's suppression of evidence order" was preceded by his express refusal to move for a dismissal of the indictments and accordingly could not be considered as a "consent"; (3) the government complied with the requirement of Rule 51; and (4) express statutory authority to file the instant appeals is conferred by the Criminal Appeals Act as amended, 63 Stat. 97, 18 U.S.C. § 3731.
The district court, it may be noted, made it plain in its opinion*fn2 relating to the dismissal Orders that it was seeking to find a way to provide for appellate review of its earlier suppression of evidence rulings.*fn3 Rather oddly, it stated in a footnote (No. 6) that "This was the course pursued by the District Court as reported in United States v. Janitz, 3 Cir., 161 F.2d 19", and while that is so, this Court, in that case, specifically rejected the government's contention that such a procedure could open the way to appellate review because of want of jurisdiction. In doing so we stated (at page 21):
"We think it is clear from the recital of the facts already set out that the learned Judge's order of dismissal was not based on any objection brought against the indictment at all. The defendants had made no attack on the indictment . The Government's case failed because it had no testimony to support it. We think this is not the kind of a judgment to which the Criminal Appeals statute is directed." (Emphasis supplied.)
The government urges that the Janitz case is distinguishable from the instant situation, and, even assuming otherwise, that it is not dispositive because the Criminal Appeals Act there construed has since been amended so as to create appellate jurisdiction.
That brings us to the critical issue as to whether the Criminal Appeals Act in effect at the time of our decision in the Janitz case in 1947 was so revised in 1948 as to vest us with jurisdiction in the instant appeals. The other points presented, later discussed, do not bear on the issue of appealability but rather on the permissible scope of review should jurisdiction exist.
The pertinent section of the Criminal Appeals Act in effect at the time of the Janitz decision (Act of May 9, 1942, c. 295, § 1, 56 Stat. 271, 18 U.S.C., 1946 ed., Sec. 682) provides:
"An appeal may be taken by * * * the United States from the district courts to a circuit court of appeals * * * in the following instances, to wit:
"From a decision or judgment quashing, setting aside, or sustaining a demurrer or plea in abatement to any indictment * * * except where a direct appeal to the Supreme Court of ...