United States v. Scott

Me. Justice Brennan,

with whom Mr. Justice White, Mr. Justice Marshall, and Mr. Justice Stevens join, dissenting.

On the basis of his evaluation of the trial evidence, the District Judge concluded that unjustifiable preindictment de *102 lay had so prejudiced respondent’s defense as to preclude— consistently with the Due Process Clause — his conviction of the offense alleged in count one of the indictment. He therefore dismissed this count with prejudice. Under the principles of double jeopardy law that controlled until today, further prosecution of respondent under count one would unquestionably be prohibited, and appeal by the United States from the judgment of dismissal thus would not lie. See 18 U. S. C. § 3731 (1976 ed.). The dismissal would, under prior law, have been treated as an “acquittal” — i. e., “a legal determination on the basis of facts adduced at the trial relating to the general issue of the case.” United States v. Martin Linen Supply Co., 430 U. S. 564, 575 (1977) (citations omitted). Indeed, further proceedings would have been barred even if the dismissal could not have been so characterized. United States v. Jenkins, 420 U. S. 358 (1975), established that, even if a mid-trial termination does not amount to an “acquittal,” an appeal by the United States from the dismissal would not lie if a reversal would, as is of course true in the present case, require “further proceedings of some sort, devoted to the resolution of factual issues going to the elements of the offense charged.” Id., at 370 . This principle was reaffirmed only last Term in Lee v. United States, 432 U. S. 23, 30 (1977): “Where a midtrial dismissal is granted on the ground, correct or not, that the defendant simply cannot be convicted of the offense charged, . . . further prosecution is barred by the Double Jeopardy Clause.” 1

But the Court today overrules the principle recognized in Jenkins and Lee . While reaffirming that the Government may not appeal from judgments of “acquittal” when reversals would require new trials, the Court holds that appeals by the United States will lie from all other final judgments favor *103 able to the accused. The Court implements this new rule by fashioning a more restrictive definition of “acquittal” than heretofore followed — i. e., “a resolution, correct or not, of some or all of the factual elements of the offense” — and holds, without explanation, that, under that restrictive definition, respondent was not “acquitted” when the District Judge concluded that the facts adduced at trial established that unjustifiable and prejudicial preindictment delay gave respondent a complete defense to the charges contained in count one.

I dissent. I would not overrule the rule announced in Jenkins and reaffirmed in Lee . This principle is vital to the implementation of the values protected by the Double Jeopardy Clause; indeed, it follows necessarily from the very rule the Court today reaffirms. The Court's attempt to draw a distinction between “true acquittals” and other final judgments favorable to the accused, quite simply, is unsupportable in either logic or policy. Equally fundamental, the decision today indefensibly adopts an overly restrictive definition of “acquittal.” Its definition, moreover, in sharp contrast to the rule of Jenkins , is incapable of principled application. That is vividly evident in the Court’s own distinction between a dismissal based on a finding of preaccusation delay violative of due process, and a dismissal based upon evidence adduced at trial in support of a defense of insanity or of entrapment. Ante, at 97-98. Why should the dismissal in the latter cases raise a double jeopardy bar, but the dismissal based on pre-accusation delay not also raise that bar to a retrial? The Court ventures no persuasive explanation. Because the thousands of state and federal judges who must apply today’s decision to similar “affirmative defenses” are left without meaningful guidance, only confusion can result from today’s decision.

I

The Court reaffirms the “most fundamental rule in the history of double jeopardy jurisprudence”: that judgments of *104 acquittal, no matter how erroneous, bar any retrial and thus that, under the proviso in 18 U. S. C. § 3731 (1976 ed.), 2 appeals by the United States will not lie when reversal would require a retrial. 3 The major premise for the Court’s conclusion that the Government may appeal from the final judgment entered for respondent is that there is a difference of constitutional magnitude between “acquittals” and midtrial dismissals, entered on motion of the accused, on grounds “unrelated to factual innocence.” This premise is fatally flawed. It, quite simply, misconceives the whole basis for the rule that “acquittals” bar retrials. The reason for this rule is not, as the Court suggests, primarily to safeguard determinations of innocence; rather, it is that a retrial following a final judgment for the accused necessarily threatens intolerable interference with the constitutional policy against multiple trials. Moreover, in terms of the practical operation of the adversary process, there is actually no difference between a so-called “true acquittal” and the termination in this case favorably to respondent.

A

While the Double Jeopardy Clause often has the effect of protecting the accused’s interest in the finality of particular favorable determinations, this is not its objective. For the Clause often permits Government appeals from final judgments favorable to the accused. See United States v. Wilson, 420 U. S. 332 (1975) (whether or not final judgment was an acquittal, Government may appeal if reversal would not ne *105 cessitate a retrial). The purpose of the Clause, which the Court today fails sufficiently to appreciate, is to protect the accused against the agony and risks attendant upon undergoing more than one criminal trial for any single offense. See ibid. A retrial increases the financial and emotional burden that any criminal trial represents for the accused, prolongs the period of the unresolved accusation of -wrongdoing, and enhances the risk that an innocent defendant may be convicted. 4 See Arizona v. Washington, 434 U. S. 497, 503-504 (1978); Green v. United States, 355 U. S. 184, 187-188 (1957). Society’s “willingness to limit the Government to a single criminal proceeding to vindicate its very vital interest in enforcement of criminal laws” bespeaks society’s recognition of the gross unfairness of requiring the accused to undergo the strain and agony of more than one trial for any single offense. United States v. Jorn, 400 U. S. 470, 479 (1971) (opinion of Harlan, J.). Accordingly, the policies of the Double Jeopardy Clause mandate that the Government be afforded but one complete opportunity to convict an accused and that when the first proceeding terminates in a final judgment favorable to the defendant 5 any retrial be barred. The rule as to acquittals can only be understood as simply an application of this larger principle.

Judgments of acquittal normally result from jury or bench *106 verdicts of not guilty. In such cases, the acquittal represents the factfinder’s conclusion that, under the controlling legal principles, the evidence does not establish that the defendant can be convicted of the offense charged in the indictment. But the judgment does not necessarily establish the criminal defendant’s lack of criminal culpability; the acquittal may result from erroneous evidentiary rulings or erroneous interpretations of governing legal principles induced by the defense. Yet the Double Jeopardy Clause bars a second trial.

In repeatedly holding that the Government may not appeal from an acquittal if a reversal would necessitate a retrial, the Court has, of course, recognized that this rule impairs to some degree the Government’s interest in enforcing its criminal laws. Yet, while we have acknowledged that permitting review of acquittals would avoid release of guilty defendants who benefited from “error, irrational behavior, or prejudice on the part of the trial judge,” United States v. Martin Linen Supply Co., 430 U. S., at 574 ; see United Statesv. Wilson, supra, at 352, we nevertheless have consistently held that the Double Jeopardy Clause bars any appellate review in such circumstances. The reason is not that the first trial established the defendant’s factual innocence, but rather that the second trial would present all the untoward consequences the Clause was designed to prevent. The Government would be allowed to seek to persuade a second trier of fact of the defendant’s guilt, to strengthen any weaknesses in its first presentation, and to subject the defendant to the expense and anxiety of a second trial. See ibid.

This basic principle of double jeopardy law has heretofore applied not only to acquittals based on the verdict of the fact-finder, but also to acquittals entered by the trial judge, following the presentation of evidence but before verdict, pursuant to Fed. Rule Crim. Proc. 29. See Sanabria v. United States, ante, p. 54; United States v. Martin Linen Supply Co., *107 supra; Fong Foo v. United States, 369 U. S. 141 (1962). For however egregious the error of the acquittal, the termination favorable to the accused has been regarded as no different from a factfinder’s acquittal that resulted from errors of the trial judge. See also Burks v. United States, ante, p. 1. These cases teach that the Government’s means of protecting its vital interest in convicting the guilty is its participation as an adversary at the criminal trial where it has every opportunity to dissuade the trial court from committing erroneous rulings favorable to the accused.

Jenkins was simply a necessary and logical extension of the rule that an acquittal bars any further trial proceedings. Jenkins recognized that an acquittal can never represent a determination that the criminal defendant is innocent in any absolute sense; the bar to- a retrial following acquittal does not — and indeed could not — rest on any assumption that the finder of fact has applied the correct legal principles to all the admissible evidence and determined that the defendant was factually innocent of the offense charged. The reason further prosecution is barred following an acquittal, rather, is that the Government has been afforded one complete opportunity to prove a case of the criminal defendant’s culpability and, when it has failed for any reason to persuade the court not to enter a final judgment favorable to the accused, the constitutional policies underlying the ban against multiple trials become compelling. Thus, Jenkins and Lee recognized that it mattered not whether the final judgment constituted a formal “acquittal.” What is critical is whether the accused obtained, after jeopardy attached, a favorable termination of the charges against him. If he did, no matter how erroneous the ruling, the policies embodied in the Double Jeopardy Clause require the conclusion that “further proceedings . . . devoted to the resolution of factual issues going to the elements of the offense charged” are barred. Jenkins, 420 U. S., at 370 ; see Lee, 432 U. S., at 30 .

*108 B

The whole premise for today’s retreat from Jenkins and Lee , of course, is the Court’s new theory that a criminal defendant who seeks to avoid conviction on a “ground unrelated to factual innocence” somehow stands on a different constitutional footing from a defendant whose participation in his criminal trial creates a situation in which a judgment of acquittal has to be entered. This premise is simply untenable. The rule prohibiting retrials following acquittals does not and could not rest on a conclusion that the accused was factually innocent in any meaningful sense. If that were the basis for the rule, the decisions that have held that even egregiously erroneous acquittals preclude retrials, see, e. g., Fong Foo v. United States, supra (acquittal entered after three of many prosecution witnesses had testified); Sanabria v. United States, ante, p. 54, were erroneous.

It is manifest that the reasons that bar a retrial following an acquittal are equally applicable to a final judgment entered on a ground “unrelated to factual innocence.” The heavy personal strain of the second trial is the same in either case. So too is the risk that, though innocent, the defendant may be found guilty at a second trial. If the appeal is allowed in either situation, the Government will, following any reversal, not only obtain the benefit of the favorable appellate ruling but also be permitted to shore up any other weak points of its case and obtain all the other advantages at the second trial that the Double Jeopardy Clause was designed to forbid.

Moreover, the Government’s interest in retrying a defendant simply cannot vary depending on the ground of the final termination in the accused’s favor. I reject as plainly erroneous the Court’s suggestion that final judgments not based on innocence deprive the public of “its valued right to 'one complete opportunity to convict those who have violated its laws,’ ” ante, at 100, quoting Arizona v. Washington, 434 *109 U. S., at 509 , 6 and therefore differ from “true acquittals.” The Government has the same “complete opportunity” in either situation by virtue of its participation as an adversary at the criminal trial. 7

Equally significant, the distinction between the two is at best purely formal. Many acquittals are the consequence of rulings of law made on the accused’s motion that are not related to the question of his factual guilt or innocence: e. g., a ruling on the law respecting the scope of the offense or excluding reliable evidence. Sanabria v. United States, ante, p. 54, illustrates the point.

*110 In Sanabria, the District Court, acting on the defendant's motions, made a series of erroneous legal rulings which began with an erroneous construction of the indictment and culminated in the exclusion of most of the evidence of defendant’s guilt. The trial court then granted defendant’s motion for a judgment of acquittal on the ground that the remaining evidence was insufficient. Sanabria held that the midtrial termination of the prosecution erected an absolute bar to any further proceedings against the defendant, and we reached that result even though the rulings which led to the acquittal were purely legal determinations, unrelated to any question of defendant’s factual guilt, and had been precipitated entirely by the defendant’s “voluntary choice” to seek a narrow construction of his indictment.

Here the legal ruling that the Court characterizes as unrelated to the defendant’s factual guilt itself terminated the prosecution with prejudice. In Sanabria, after the District Court rendered the two erroneous rulings that excluded most of the relevant evidence of defendant’s guilt, it remained for the trial court to take the pro forma step of granting the defendant’s motion for a judgment of acquittal. Surely, this difference between the cases should not possess constitutional significance. By holding that it does, the Court suggests that the present case would have been decided differently if the trial court had remedied the due process violation by excluding all the Government’s evidence on count one and then entering an acquittal pursuant to Rule 29. Sanabria simply confirms that the distinction the Court today draws is wholly arbitrary, bearing no conceivable relationship to the policies protected by the Double Jeopardy Clause.

II

The Court’s definition of “acquittal” compounds the damage that repudiation of Jenkins and Lee has done to the fabric of double jeopardy law. Not only is this definition unduly *111 restrictive, it is literally incapable of principled application. The Court’s application of its definition to the facts of this case proves the point.

The doctrine of preindictment delay, like a host of other principles and policies of the law — e. g., entrapment, insanity, right to speedy trial, statute of limitations — operates to preclude the imposition of criminal liability on defendants, notwithstanding a showing that they committed criminal acts. Like these other doctrines, the question whether preindictment delay violates due process of law cannot ordinarily be considered apart from the factual development at trial since normally only the “ ‘[e] vents of the trial [can demonstrate] actual prejudice.’ ” United States v. Lovasco, 431 U. S. 783, 789 (1977), quoting United States v. Marion, 404 U. S. 307, 326 (1971); see United States v. MacDonald, 435 U. S. 850, 858, 858-859 (1978).

Here, therefore, the District Court, quite properly, deferred consideration of the respondent’s pretrial motion to dismiss for preaccusation delay until trial. At the close of the evidence, respondent renewed his motion. The District Court recognized that there was sufficient evidence of guilt to permit submission of count one to the jury, but granted the motion as to this count because, evaluating the facts adduced at trial, the court found that the delay between the offense alleged and respondent’s indictment had been unjustifiable and had so prejudiced respondent’s ability to present his defense as to constitute a denial of due process of law.

A critical feature of today’s holding appears to be the Court’s definition of acquittal as “ 'a resolution [in the defendant’s favor], correct or not, of some or all of the factual elements of the offense charged,’ ” ante, at 97, quoting United States v. Martin Linen Supply Co., 430 U. S., at 571 . But this definition, which is narrower than the traditional one, enjoys no significant support in our prior decisions. The language quoted from Martin Linen Supply Co. was tied to the par *112 ticular issue in that case and was never intended to serve as an all-encompassing definition of acquittal for all purposes. Rather, Martin Linen Supply referred generally to “acquittal” as “a legal determination on the basis of facts adduced at the trial relating to the general issue of the case,” id., at 575 (citations omitted), and this is the accepted definition. See Serfass v. United States, 420 U. S. 377, 393 (1975), quoting United States v. Sisson, 399 U. S. 267 , 290 n. 19 (1970). This definition, moreover, clearly encompasses rulings pertaining to all “affirmative defenses” that depend on the factual development at trial.

The traditional definition of “acquittal” obviously is responsive to the values protected by the Double Jeopardy Clause. While it perhaps might not be objectionable to permit retrial of a defendant whose first trial was terminated on the basis of a midtrial ruling on a motion that could— because it did not depend upon the facts adduced at trial — have been raised before jeopardy attached, see Serfass v. United States, supra, at 394, 8 it would be intolerable to permit, the retrial of a defendant whose first prosecution ended on the basis of a ruling — like the one in the present case — which could only be made after the factual development at trial. Notably, the Court neither explains why it chooses to reject the more traditional definition of “acquittal” nor attempts to justify its more restrictive definition in terms of the constitutional policy against multiple trials.

But I will not dwell further on this point.. As the Court opinion itself demonstrates, what is perhaps as important as the actual definition is how it is applied. The pertinent question, thus, is one the Court never addresses: Why, for pur *113 poses of its new definition of “acquittal,” is not the fact vel non of preindictment delay one of the “factual elements of the offense charged”? The Court plainly cannot answer that preindictment delay is not referred to in the statutory definition of the offense charged in count one, cf. Patterson v. New York, 432 U. S. 197 (1977), for it states that dismissals based on the defenses of insanity 9 and entrapment — neither of which is bound up with the statutory definition of federal crimes — will constitute “acquittals.” Ante, at 97-98.

How can decisions based on the trial evidence that a defendant is “not guilty by reason of insanity” or “not guilty by reason of entrapment” erect a double jeopardy bar, and a decision — equally based on evaluation of the trial evidence— that the defendant is “not guilty by reason of preaccusation delay” not also prohibit further prosecution? None of these defenses is bound up in the definition of a crime, and the availability of each depends on the factual development at trial. More fundamentally, to permit a retrial following an appellate court’s reversal of a judgment entered on any of these grounds presents all the evils the Double Jeopardy Clause was designed to prevent. The Court offers no satisfactory explanation for the difference in treatment. The suggestion that determinations concerning insanity and entrapment are “factual” whereas dismissals of indictments for preindictment delay represent “legal judgments,” see ante, *114 at 98, is simply untenable. Consideration of all three defenses requires the application of legal standards to the evidence adduced at trial, and the most likely ground for reversal and reprosecution following the entry of a final judgment favorable to the accused on such grounds would be an appellate court’s conclusion that the trial court applied an erroneous legal test. The question the Court fails to address, therefore, is why an egregiously erroneous dismissal on entrapment grounds — e. g., a ruling in a federal trial that a defendant has been entrapped as a matter of law because it had been shown that the Government had supplied the contraband the defendant had been charged with selling, cf. Hampton v. United States, 425 U. S. 484 (1976) — should erect a double jeopardy bar but not a possibly erroneous dismissal on the ground of preaccusation delay. The Court’s observation that factual defenses of insanity and entrapment provide “legal justifications for otherwise criminal acts” — and is unlike the doctrine of preindictment delay, which is intended to protect the integrity of the trial process — reflects common legal parlance but in no wise explains why the two classes of dismissals should have different double jeopardy consequences.

Whether or not the Court’s ipse dixit concerning the consequences of a ruling of unlawful preaccusation delay is defensible, the enormous practical problems that today’s decision portends are very clear. A particularly appealing virtue of the Jenkins and Lee principle — in addition, of course, to its protection of constitutional values — was its simplicity. Any midtrial order contemplating an end to all prosecution of the accused would automatically erect a double jeopardy bar to a retrial. Under today’s decision, the thousands of state and federal courts will be required to decide, with only minimal guidance from this Court, the question of the double jeopardy consequences of all favorable terminations of criminal proceedings on the basis of affirmative defenses. The only guidance the Court offers is its suggestion that defenses which *115 provide legal justifications for otherwise criminal acts will erect double jeopardy bars whereas those defenses that arise from unlawful or unconstitutional Government acts will not. Consideration of the defense of entrapment illustrates how difficult the Court’s decision will be to apply. To the extent the defense applies when there has been a showing the defendant was not “predisposed” to commit a criminal act, it perhaps does provide a “legal justification.” But the defense of entrapment, in many jurisdictions, see Park, The Entrapment Controversy, 60 Minn. L. Rev. 163 , 171-176 (1976), is a device to deter police officials from engaging in reprehensible law enforcement techniques. Is the entrapment defense to erect a double jeopardy bar in such jurisdictions? Are the double jeopardy consequences to depend upon the appellate court’s characterization of the operation of the defense in the particular case before it? And what of other traditional factual defenses, which are routinely submitted to the jury and which could be the basis for Rule 29 motions: e. g., the statute of limitations? 10 Ironically, it seems likely that, when all is said and done, there will be few instances indeed in which defenses can be deemed unrelated to factual innocence. If so, today’s decision may be limited to disfavored doctrines like preaccusation delay. See generally United States v. Lovasco, 431 U. S. 783 (1977).

It is regrettable that the Court should introduce such confusion in an area of the law that, until today, had been crystal clear. Its introduction might be tolerable if necessary to advance some important policy or to serve values protected by *116 the Double Jeopardy Clause, but that manifestly is not the case. Rather, today's decision fashions an entirely arbitrary distinction that creates precisely the evils that the Double Jeopardy Clause was designed to prevent. I would affirm the judgment of the Court of Appeals.

See also Finch v. United States, 433 U. S. 676 (1977) (applying rule of Jenkins to dismissal entered on basis of stipulated facts); United States v. Martin Linen Supply Co., 430 U. S. 564 (1977).

Section 3731 provides that the United States may obtain appellate review of a "dismissal” “except that no appeal shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution.”

The Court cites with approval Sanabria v. United States, ante, p. 54; United States v. Martin Linen Supply Co., supra; Fong Foo v. United States, 369 U. S. 141 (1962); Kepner v. United States, 195 U. S. 100 (1904); and United States v. Ball, 163 U. S. 662 (1896).

There are a number of reasons a retrial enhances the risk that “even though innocent, [the criminal defendant] may be found guilty.” Green v. United States, 355 U. S. 184, 188 (1957). A retrial affords the Government the opportunity to re-examine the weaknesses of its first presentation in order to strengthen the second. And, as would any litigant, the Government has been known to take advantage of this opportunity. It is not uncommon to find that prosecution witnesses change their testimony, not always subtly, at second trials. See Arizona v. Washington, 434 U. S. 497 , 504 n. 14 (1978), quoting Carsey v. United States, 129 U. S. App. D. C. 205, 208-209, 392 F. 2d 810, 813-814 (1967).

By “final judgment favorable to the accused,” I am, of course, referring to an order terminating all prosecution of the defendant on the ground he “simply cannot be convicted of the offense charged.” See Lee v. United States, 432 U. S. 23, 30 (1977).

Similarly unpersuasive is the Court’s suggestion that its holding is supported by the well-recognized rules that a criminal defendant may twice be tried for the same offense if he either successfully moved for a mistrial at the first trial, see Lee, supra; United States v. Dinitz, 424 U. S. 600 (1976), or succeeded in having a conviction set aside on a ground other than the insufficiency of the evidence. See United States v. Ball, 163 U. S. 662 (1896). What distinguishes these situations, of course, is that neither involved a final judgment entered for the accused, and that in both the Government could not be said to have had a complete opportunity to convict the accused.

The Court’s suggestion that intervening decisions have somehow undermined Jenkins simply will not wash. Although it is quite true that the author of the Court opinion has stated that he understood Jenkins to embrace a rule that any midtrial termination that is labeled a “dismissal” erects a double jeopardy bar, see ante, at 86 n. 2, quoting Lee, 432 U. S., at 36 (Rehnqtjist, J., concurring), no Court opinion has adopted the position that the label attached to a trial court’s ruling could be determinative. Indeed, since Serfass v. United States, 420 U. S 377, 392 (1975), which was decided the week after Jenkins , explicitly provides that labels are not to have such talismanic significance, the unanimous Court in Jenkins could scarcely have contemplated that it had announced such a mechanical formula.

Thus, the Court’s suggestion, see ante, at 94, that Lee , which held that a termination that was labeled a “dismissal” did not erect a double jeopardy bar, could have undermined Jenkins is unpersuasive on its face. In Lee , we treated the dismissal as the equivalent of a mistrial because both the trial judge and the parties had so regarded it. See 432 U. S., at 29.

In Serfass , we reserved decision on the question whether a defendant who was afforded an opportunity to obtain a determination of a legal defense prior to trial but who nevertheless knowingly allowed himself to be placed in jeopardy before raising the defense could claim the protections of the Double Jeopardy Clause. 420 U. S., at 394.

A contrary position would not only be inconsistent with Burks v. United States, ante, p. 1, but would also have untoward consequences for criminal defendants. The premise of such a ruling would necessarily be that a criminal defendant has no legitimate interest in protecting the finality of a verdict of not guilty by reason of insanity. It would then follow that there could be appellate review not only of all directed verdicts of not guilty by reason of insanity, but also of all jury verdicts that had been preceded by a prior finding of guilt of the statutory offense. The implications of such a holding would be particularly significant in jurisdictions providing for bifurcated determinations of guilt and sanity.

In any ease in which the date upon which the defendant committed the crime is disputed and may have been outside the statute of limitations provided by law, a trial judge could, and probably would, submit this question to the jury along with the general issue. Similarly, in any case in which the evidence adduced at trial revealed that the defendant had committed the criminal act outside the limitation period, the defendant would move for a “directed verdict.”