Before CLARK, Chief Judge, and MEDINA and LUMBARD, Circuit Judges.
We must refuse to hear the government's appeal from the district court's dismissal before trial of an information charging the defendants with improperly removing the labels on goods imported from the Soviet Zone of Germany, because it seems to us that the appeal may be taken only to the Supreme Court by reason of 18 U.S.C. § 3731 (1952). Accordingly, under the terms of the statute, and following our precedent in United States v. Zisblatt, 2 Cir., 1949, 172 F.2d 740, we will certify the case to the Supreme Court if the government so requests.
Section 3731 provides that the government may appeal directly to the Supreme Court in two classes of criminal cases which are here relevant:
"From a decision or judgment setting aside, or dismissing any indictment or information, or any count thereof, where such decision or judgment is based upon the invalidity or construction of the statute upon which the indictment or information is founded.
"From the decision or judgment sustaining a motion in bar, when the defendant has not been put in jeopardy."
Where appeal may be taken to the Supreme Court the same statute expressly provides that it may not be taken to a court of appeals:
"An appeal may be taken by and on behalf of the United States from the district courts to a court of appeals in all criminal cases, in the following instances:
"From a decision or judgment setting aside, or dismissing any indictment or information, or any count thereof except where a direct appeal to the Supreme Court of the United States is provided by this section."
Our conclusion from § 3731 that the government's appeal here lies only to the Supreme Court rests on two grounds. The first is that, as the district court's dismissal of the information rests on its interpretation of a regulation, it is tantamount to being "based upon the invalidity or construction of the statute upon which the * * * information is founded," and appeals from such dismissals may be taken only to the Supreme Court. The second ground is that the effect of Judge Noonan's decision was to sustain a "motion in bar" and that the express provisions of the controlling statute therefore take the appeal to the Supreme Court.
The first ten counts of the eleven count information charge violations of 19 U.S.C.A. § 1304(e), 46 Stat. 687, as amended, 52 Stat. 1077 (1938)*fn1 by the unlawful alteration, between August 1956 and March 1957 of the required country of origin markings on ten violins. The eleventh count charges conspiracy to violate the same subsection. The defendants moved to dismiss the information for failure to state facts sufficient to constitute an offense against the United States.
Section 1304(e) forbids wilful alterations, for the purpose of concealment, of the marking of the "country of origin" on imported articles required in subsection 1304(a).*fn2 Subparts (1) and (2) of that subsection vest in the Secretary of the Treasury the power to issue regulations to designate acceptable markings, and to require the addition of words "to prevent deception or mistake as to the origin of the article * * *" Pursuant to this power, the Secretary issued three Treasury Decisions.The first, T.D. 51527 (August 28, 1946), provided that imported articles from any of the Allied Zones of occupied Germany could properly be marked "Germany." The second, T.D. 53210 (March 3, 1953), superseded T.D. 51527 and required that articles from the Soviet Zone be so marked, but the defendants urge that T.D. 51527 was superseded for the purpose of customs valuation only, rather than for all purposes. The third, T.D. 53281 (June 18, 1953), is relied on by the government to established that T.D. 51527 had been superseded for all purposes.
The information alleged that in wilful violation of § 1304(e) the defendants, who bought from importers and sold to retailers, removed the "Germany/USSR Occupied" label from the violins; defendants' affidavit apparently admits that they customarily substituted the label "Made in Germany." Judge Noonan's dismissal of the information appears to have rested on two alternative grounds both of which the government questions on appeal: Judge Noonan held that either the regulations, properly construed, do not render illegal the defendants' alterations of the markings, or, alternatively, if the alterations were rendered criminal, the regulations are too vague to sustain a criminal prosecution.
First, it seems to us that the dismissal of an information based upon a regulation, or regulations, is comprehended within the scope of the words "construction of the statute upon which the * * * information is founded." It is true that there has been no previous ruling on the precise question presented here: Whether appeal from a dismissal is exclusively for the Supreme Court when it is based in the alternative upon a holding that the regulation as construed is inapplicable, or upon a construction which renders it too vague to sustain the imposition of criminal sanctions. But in United States v. Foster, 1914, 233 U.S. 515, 34 S. Ct. 666, 58 L. Ed. 1074, the Supreme Court accepted jurisdiction because the district court had dismissed an indictment - based in part on a regulation of the Postmaster General - on the ground that the regulation was directly in conflict with what it held to be the proper "construction of the statute" involved. We see no reason to distinguish ...