Transfer of a case from the Court of Appeals for the District of Columbia Circuit to this Court under the certification provisions of the Criminal Appeals Act is improper where the appeal from the District Court to the Court of Appeals was pursuant to D.C. Code 23-105, which does not provide for transfer to this Court. Moreover, the Court of Appeals has not determined that it lacked jurisdiction to hear the appeal under 23-105, which is not affected by the Criminal Appeals Act.
Case returned to Court of Appeals for further proceedings.
On September 30, 1968, the District Court for the District of Columbia dismissed, "with prejudice," an indictment charging appellee Sweet with various crimes under the D.C. Code, on a finding that the Government had not acted promptly enough in bringing the case to trial. The United States appealed this dismissal pursuant to D.C. Code 23-105 * to the Court of Appeals for the District of Columbia Circuit. That court, without making any determination of its jurisdiction under 23-105, certified the case to this Court pursuant to 18 U.S.C. 3731, the Federal Criminal Appeals Act.
We conclude that certification under 3731 was not proper in the circumstances of this case. Section 3731 [399 U.S. 517, 518] provides in terms for certification only "[i]f an appeal shall be taken pursuant to this section to any court of appeals which, in the opinion of such court, should have been taken directly to the Supreme Court . . . ." (Emphasis added.) The Government's appeal to the Court of Appeals in this case was not pursuant to 3731 but instead expressly pursuant to D.C. Code 23-105, which contains no provision allowing transfer to this Court. Moreover, as noted earlier, it appears that the Court of Appeals has made no determination that is lacked jurisdiction to hear the Government's appeal under the broad terms of 23-105, a statute that we previously held was unaffected in scope by the subsequent passage of the Criminal Appeals Act. United States v. Burroughs, 289 U.S. 159 (1933).
Accordingly, we hold that transfer to this Court was inappropriate and we return the case to the Court of Appeals for further proceedings.
MR. JUSTICE MARSHALL took no part in the decision of this case.
[ Footnote * ] D.C. Code 23-105 (a) (Supp. III, 1970) provides: