Amicus Curiae Brief — Smalis v. Pennsylvania
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| Supreme Court, U.S.
FILED
Lf FEB 12 1008
/
“
Ry
No. 85-227
sbi : —— an JR.
In the Supreme Court of the United States
OCTOBER TERM, 1985
DESPINA SMALIS AND ERNEST SMALIS, PETITIONERS
Vv.
COMMONWEALTH OF PENNSYLVANIA
ON WRIT OF CERTIORARI TO
THE SUPREME COURT OF PENNSYLVANIA
BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING RESPONDENT
CHARLES FRIED
Solicitor General
STEPHEN S. TROTT
Assistant Attorney General
ANDREW L. FREY
Deputy Solicitor General
ALAN I, HOROWITZ
Assistant to the Solicitor General
Department of Justice
Washington, D.C. 20590
(202) 633-2217
——— ei a
QUESTION PRESENTED
Whether the Double Jeopardy Clause bars the prosecu-
tion from appealing an order of the court sustaining a
demurrer at the close of the prosecution’s case on the
basis of legal insufficiency of the evidence.
(I)
TABLE OF CONTENTS
Page
Interest of the United States -........................---.------- bebe 1
Neen a. nserienacqnmomnncceccccccnes 1
Introduction and summary of argument ........................ 3
Argument:
The Double Jeopardy Clause does not prohibit ap-
i edliesiclinssaracsnacnrerrneqmtersconssesees 7
A. The Double Jeopardy Clause does not bar a re-
trial following appeal of a midtrial order by the
court erroneously terminating a prosecution on
the ground that the evidence is legally insuffi-
EE ESS EE 7
1. The Double Jeopardy Clause has been held
to bar retrial for the same offense following
an acquittal by the factfinder —.................... 7
2. A ruling by the Court that the evidence is
legally insufficient to sustain a guilty verdict
is not a verdict of acquittal that automati-
EEE Ee 11
B. There is no Double Jeopardy bar to appeal of a
midtrial judicial ruling of insufficiency if a
successful appeal would simply result in a re-
sumption of the first trial _.................................. 26
OE EE 30
TABLE OF AUTHORITIES
Cases:
Abney v. United States, 431 U.S. 651.000.000.000... 2
Arizona V. Rumsey, No. 83-226 (May 29, 1984) ....9, 10, 20
Arizona Vv. Washington, 434 U.S. 497 .............. 8, 13, 14, 16
Ashe v. Swenson, 397 U.S. 486 ..................00000.. 00... 17
Barrett v. United States, 423 U.S. 212 .....00000.... 25
(TIT)
IV
Cases—Continved : Page
Brotherhood of Locomotive Firemen & Enginemen
v. Bangor & Aroostook R.R., 389 U.S. 327 .......... 3
Burks v. United States, 437 U.S. 1 ...........------------- 9, 20, 24
Finch v. United States, 433 U.S. 676 ...........-....... 25-26
Flynt v. Ohio, 451 U.S. 619 ............---------------e--e0ee00> 2
Fong Foo v. United States, 369 U.S. 141 ................ 21, 22
Green v. United States, 355 U.S. 184 -................... 10-11, 17
Hudson v. Louisiana, 450 U.S. 40 ..............-------------- 20
Justices of Boston Municipal Court v. Lydon, 466
OT a cas pelle peenitiaimnaneatnnanete 10, 17
Kepner v. United States, 195 U.S. 100 .............------- 7
Oregon v. Kennedy, 456 U.S. 667 -...............-.-------- 6, 14, 18
Palko v. Connecticut, 302 U.S. 319 .............-.----------- 5, 7
Poland v. Arizona, 144 Ariz. 388, 698 P.2d 183,
cert. granted, No. 85-5023 (Oct. 7, 1985) -........... 9,10
Richardson v. United States, No. 82-2113 (June
i er 20
Sanabria v. United States, 437 U.S. 54 ................ 21, 22, 28
Serfass v. United States, 420 U.S. 377 -.................-. 22, 29
Sparf & Hansen v. United States, 156 U.S. 51........ 15
Swisher v. Brady, 438 U.S. 204 ............---.--------------+- 28, 29
Tibbe vy. Florida, 457 U.S. $1. ..........-------...------.--------- 20, 24
United States, In re, 286 F.2d 556 .................-.----.---- 22
United States v. Appawoo, 553 F.2d 1242 ................ 18
United States v. Ball, 163 U.S. 662 -......................... 8
United States vy. Ceccolini, 435 U.S. 268 .................. 27
United States v. DiFrancesco, 449 U.S. 117......5, 8, 11, 12,
17, 23, 30
United States v. Dinitz, 424 U.S. 600 ...................... 4, 13
United States v. Ellison, 684 F.2d 664, vacated,
alae EIA I 18, 27, 28
United States v. Ember, 726 F.2d 522 .................... 18
United States v. Fay, 553 F.2d 1247 ........................ 26
United States v. Giampa, 758 F.2d 928 -................ 18
United States v. Head, 697 F.2d 1200, cert. de-
§ ! & See 25
United States v. Jenkins, 420 U.S. 358 -...... 12, 15, 22, 27
United States v. Jorn, 400 U.S. 470 ....................... 14
United States v. Martin Linen Supply Co., 430 U.S.
TUTE cctaissneidecionnsebislicananees 15, 19, 21, 22, 23, 24, 25, 26, 28
——
A,
Cases—Continued : Page
United States v. Medeiros, No. 80-1399 (D. Ha-
waii Apr. 28, 1981) ................---------scs--seesseseeseeeees 25
United States v. Perez, 22 U.S. (9 Wheat.) 579... 14
United States v. Sartori, 730 F.2d 973 .................... 14
United States v. Scott, 437 U.S. 82 -............-.---... ... passim
United States v. Singleton, 702 F.2d 1159 -............ 12
United States v. Steed, 674 F.2d 284 ...............-.......- 12
United States v. Tateo, 377 U.S. 463 .................... 8,13
United States v. Wilson, 420 U.S. 332...7, 8, 10, 16, 17, 30
Wade v. Hunter, 336 U.S. 684 ....................... Scenes 13, 19
Constitution, statutes and rule:
U.S. Const. :
I oo eacciin pnsinbidapeiasierenmiatnetentons 2
Amend. V (Double Jeopardy Clause) .............. passim
WO ND | wxcsecccereccctesnsccssnnsesonecensnccsussccocesomapenen 25
18 U.S.C. $781 ........ LE sal Rd er Sare Ta cee a
I ID inns ctdacovessncnsusssosectorcciessiaccmentecsonsentes 25
IED cntevcecscconnesssses PR ASSL Eo ee EP 3
I ooiccecviccersecsserererecseusaroursecssorsnassonsess 1,2
Fed. R. Crim. P.:
aos ic aecaninninniensien 1, 12, 17, 23, 27, 28
in st caitecicagnieiinneneeeanoneeinnnit - 21
Miscellaneous:
Cooper, Government Appeals in Criminal Cases:
The 1978 Decisions, 81 F.R.D. 539 (1979)........ 23, 24
M. Friedland, Double Jeopardy (1969) .................. 24-25
Mayers & Yarbrough, Bis Vexari: New Trials
and Successive Prosecutions, 74 Harv. L. Rev. 1
IN a,c cs ceiininccaiaibuaieondsbetinendinces ie eee ae! 25
J. Sigler, Double Jeopardy I a uals 25
Westen, The Three Faces of Double Jeopardy:
Reflections on Government Appeals of Criminal
Sentences, 78 Mich. L. Rev. 1001 (1980).....8, 11, 17, 21,
22, 24
Westen & Drubel, Toward a General Theory of
Double Jeopardy, 1978 Sup. Ct. Rev. 81 _......... 8, 22, 23
: > * of ‘
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2 ——— ~~ i ie
Ju the Supreme Court of the United States
OCTOBER TERM, 1985
No. 85-227
DESPINA SMALIS AND ERNEST SMALIS, PETITIONERS
Vv.
COMMONWEALTH OF PENNSYLVANIA
ON WRIT OF CERTIORARI TO
THE SUPREME COURT OF PENNSYLVANIA
BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE SUPPORTING RESPONDENT
INTEREST OF THE UNITED STATES
The question presented in this case involves the consti-
tutionality of an appeal by the prosecution from the sus-
taining of demurrers by the trial court at the close of the
prosecution’s case, pursuant to Pennsylvania rules of
criminal procedure. Rule 29 of the Federal Rules of
Criminal Procedure provides a similar mechanism for
pre-verdict judicial termination of a trial, and a signifi-
cant number of federal prosecutions are terminated at
this stage by the trial court’s entry of a judgment of
acquittal. The United States has a strong interest in
being able to secure correction of legally erroneous pre-
verdict terminations of criminal trials.
JURISDICTION
The United States believes that there is a serious ques-
tion whether the Court has jurisdiction in this case. Cer-
tiorari was sought pursuant to 28 U.S.C. 1257(3), which
(1)
2
permits review by this Court only of “[f]inal judgments
or decrees” of a state court. The decision of the Penn-
sylvania Supreme Court upholding the prosecution’s right
of appeal did not terminate this case, but rather re-
manded to the Superior Court for further proceedings,
consisting of a determination of the merits of the Com-
monwealth’s appeal. In the context of a criminal prose-
cution, finality is normally determined by the imposition
of sentence (Flynt v. Ohio, 451 U.S. 619, 620 (1981)),
and of course no conviction has been had, let alone sen-
tence imposed, in the instant case.*
It is of course true that petitioners here assert a right
to be free of allegedly impermissible double jeopardy and
that appeals invoking such a right are treated as being
from final orders under the “collateral order’ doctrine.
Abney v. United States, 431 U.S. 651 (1977). But that
is true only because, in cases like Abney, a refusal to
entertain an appeal could, if the double jeopardy claim
were meritorious, lead to an irremediable violation of the
defendant’s constitutional right (and because the other
elements of the collateral order doctrine are also held to
be met in such an appeal). These principles would no
doubt lead to the conclusion that a judgment remanding
this case for further trial proceedings would exhibit the
requisite finality to satisfy Section 1257 for purposes of
presenting a double jeopardy claim to this Court.
But that is not what has happened here. Rather, the
case has been remanded for further appellate proceed-
ings. Petitioners do not assert—nor could they—that such
proceedings would themselves violate double jeopardy con-
straints. But the consideration of the merits of the ap-
peal by the Superior Court may well result in an affirm-
—
1 This case does not have any of the characteristics that caused
four Justices to dissent from the jurisdictional holding in Flynt.
Those Justices believed that the conduct of the trial would itself
violate the Constitution if Flynt’s claim of impermissible selective
prosecution to chill First Amendment rights were meritorious. See
451 U.S. at 623-624. Here, there can be no suggestion that consider-
ation of the Commonwealth’s appeal could itself violate federal
rights of any kind.
3
ance of the trial court’s ruling—thereby removing any
possibility of injury to petitioners’ double jeopardy rights
by eliminating the prospect of further trial proceedings.
If, on the other hand, the Superior Court reverses the
grant of the demurrer and remands for continuation of
the trial, and the Pennsylvania Supreme Court upholds
that ruling, petitioners’ claim will be ripe for this Court’s
review at that time. At present, however, the case is
plainly in an interlocutory posture, and the petition
should be dismissed for lack of jurisdiction.’
INTRODUCTION AND SUMMARY OF ARGUMENT
The law of double jeopardy is judge-made law, evolved
by this Court in an effort to give content to the central
idea embodied in the Double Jeopardy Clause of the Fifth
Amendment that unjustified repetitive litigation of crim-
inal charges should not be permitted. Among the prin-
ciples that have achieved acceptance is that the prosecu-
tion may not seek appellate review of an “acquittal” if
the result of a reversal on appeal would be a new trial.
And the Court has generally assumed that this principle
would extend to a legal ruling on the sufficiency of the
evidence entered by the trial court. While this case can
be affirmed on the ground that a successful prosecution
appeal would result only in a continuation of the first
jeopardy, rather than an impermissible second jeopardy,
we believe that this case offers the Court an occasion to
consider whether it should reexamine some of its assump-
tions about the status of rulings regarding legal suffi-
ciency of the evidence.
A. It is of course beyond question that the process of
criminal prosecution includes numerous procedural ad-
vantages for the defendant, most notably the extremely
2 If this were a federal case, the lack of finality would not present
a jurisdictional bar to review by certiorari under 28 U.S.C. 1254(1).
Nonetheless, prudential considerations ordinarily would lead the
Court to decline review of a case in this interlocutory posture. See
Brotherhood of Locomotive Firemen & Enginemen v. Bangor &
Aroostook R.R., 389 U.S. 327 (1967).
4
heavy burden of proof that the prosecution is required
to shoulder. Each of these advantages is rationally rooted
in the values of the criminal justice system, particularly
the allocation of the risk of error to minimize the danger
of convicting an innocent person. The advantage involved
in this case—the defendant’s ability to retain ihe benefit
of a legally erroneous “acquittal” that he has induced the
tria) court (not acting as ultimate fact-finder) to enter—
has no comparable rational nexus to the policies of the
criminal law. None of the policies that have been put
forth by this Court to justify the “special weight” ac-
ecrded to jury acquittals has any applicability to such a
legal ruling.
Thus, any sensible balancing of the relevant double
jeopardy interests compels the conclusion that the prose-
cution should not be barred from appealing a midtrial
termination sought by the defendant on the grounds of
legal insufficiency of the evidence. A contrary rule im-
poses substantial costs on society without advancing any
double jeopardy interest of the defendant. As was ex-
plained in United States v. Scott, 4837 U.S. 82 (1978),
the relevant interest protected by the rule restricting re-
trials in cases of pre-verdict termination of the first trial
is the “valued right” to have the trial completed before
the original tribunal. A defendant voluntarily relinquishes
that right by a motion for mistrial (see United States v.
Dinitz, 424 U.S. 600 (1976)) or by a request that the
trial be terminated prior to verdict on some other ground,
such as the claim in Scott that there had been imper-
missible preindictment delay. Double jeopardy principles
do not bar the retrial that would follow a successful gov-
ernment appeal in such a case because the need for a
retrial has been occasioned by the defendant’s election to
terminate the first trial prior to verdict rather than de-
ferring his claim for post-verdict consideration,
While Scott stated, without separately analyzing the
matter, that acquittals are different and are excepted
from this principle, it is difficult to construct a persuasive
5
basis for such a conclusion in the case of “acquittals”
by the court attacked solely for legal error.* As with the
claim in Scott, the assertion that the evidence is legally
insufficient to support a guilty verdict is available as a
ground for post-verdict relief. And if a post-guilty-verdict
acquittal is entered, the prosecution can appeal and se-
cure a determination of the legal sufficiency of the evi-
dence without the necessity for a retrial and therefore
without raising any double jeopardy problem (see United
States v. DiFrancesco, 449 U.S. 117, 130 (1980)). It is
solely the defendant’s action in seeking pre-verdict ter-
mination by entry of the court’s ruling in advance of the
factfinder’s consideration of the evidence that attaches
the added price of retrial to the cost of correcting any
error in the defendant’s favor that may have been made
by the trial court. (The different types of legal error
that can fall under the rubric of an “acquittal” by the
court are discussed at note 17, infra.)
In sum, we submit that a rule applying to legally er-
roneous rulings of insufficiency by the court the special
status accorded to legally erroneous acquittals by the
factfinder cannot be squared with any reasonably even-
handed concept of justice. In these situations, it is the
3 We do not speak here of paradigmatic acquittals, viz., verdicts
of not guilty returned by the factfinder on the basis of the applica-
tion of the law to the facts found upon consideration of the evidence.
Even then, there is much to commend Justice Cardozo’s sentiment
that it is more just to allow a retrial when the original verdict is
tainted by material legal error than to prohibit review and correc-
tion. Palko v. Connecticut, 302 U.S. 319, 328 (1937). But at least
in those cases it is possible that the verdict was actually the product
of a factual determination that the prosecution had failed to estab-
lish guilt. In a case in which a judge enters a pre-verdict “acquittal”
(or, as here, withholds factfinding in a bench trial in order to rule
on purely legal grounds), on the other hand, there has been no such
factual determination, only a legal ruling. When that ruling is
found to be legally erroneous, we can be certain that there has as
yet been no failure by the prosecution to demonstrate guilt by
legally sufficient evidence—and therefore no legally tenable basis for
holding the proceedings to have produced an unreviewable acquittal.
6
defendant who has procured the early termination of
the trial despite the prosecution’s efforts to secure a ver-
dict. Is it right to allow him to complain that he should
not be subjected to the retrial that his own action has
necessitated? See Oregon v. Kennedy, 456 U.S. 667, 673
(1982). And if the defendant has led the trial court into
error, to the prejudice of the prosecution, it hardly seems
just to bar the prosecution, as the injured party, from
securing relief. Application of such a rule compromises
the fairness of the criminal justice system by allowing
guilty defendants to go free without perceptibly advanc-
ing any of the policies embodied in the Double Jeopardy
Clause.
B. In any event, even if the court’s order here is treated
as an “acquittal,” there is no bar to appeal because fur-
ther proceedings in the trial court would be a continua-
tion of the first trial and therefore not a “second jeop-
ardy,” to which alone the constitutional prohibition ap-
plies. There is no reason why a defendant should go free
just because a court finds the evidence insufficient in mid-
trial, if the court reconsiders its ruling or is reversed on
appeal prior to the discharge of the jury. The Double
Jeopardy Clause does not protect against a single trial,
and it is not implicated if a court recesses and then re-
sumes a trial. That fact does not change simply because
there is appellate consideration of a legal issue during
the recess, and therefore the resumption of trial here af-
ter the court’s recess would still be part of the first trial.
Finally, it is well established that the defendant has no
right to retain the benefit of an erroneous judicial finding
of insufficiency since a post-guilty-verdict “acquittal” by
the court is appealable.
7
ARGUMENT
THE DOUBLE JEOPARDY CLAUSE DOES NOT PRO-
HIBIT APPEAL IN THIS CASE
A. The Double Jeopardy Clause Does Not Bar A Retrial
Following Appeal Of A Midtrial Order By The Court
Erroneously Terminating A Prosecution On The
Ground That The Evidence Is Legally Insufficient
1. The Double Jeopardy Clause Has Been Heid To Bar
Retrial for the Same Offense Following an Acquittal
by the Factfinder
In Kepner v. United States, 195 U.S. 100 (1904), this
Court rejected the theory of “continuing jeopardy” pro-
pounded in dissent by Justice Holmes and held that an
acquittal by the factfinder could not be appealed, even
if it was erroneous, if the appeal constituted or would
result in a retrial. In United States v. Wilson, 420 U.S.
332, 351-352 (1975), the Court affirmed in dictum that
the holding of Kepner is rooted in the Double Jeopardy
Clause and that it applies to an ordinary appeal on the
basis of legal error following a verdict of acquittal if a
successful appeal would necessitate a retrial.* Although
the rule that a verdict of acquittal, even if erroneous,
insulates a defendant against a retrial has come to be
considered a fundamental principle of double jeopardy
law, United States v. Scott, 4837 U.S. 82, 90 (1978), it
is worth recalling that in Palko v. Connecticut, 302 U.S.
319, 323, 329 (19387), the Court found that this result
is not compelled by—indeed, is not even particularly con-
sistent with—any basic notions of fairness or due process.
The rule insulating erroneous acquittals from correc-
tion has been described as “implausible on its face”’
(Westen & Drubel, Toward a General Theory of Double
4The decision in Kepner involved a peculiar procedure in the
Philippines that essentially contemplated a trial de novo on appeal
following the entry of a verdict of acquittal in a bench trial. In
addition, the case technically did not involve the Double Jeopardy
Clause, but rather a federai statute applying double jeopardy princi-
ples to the Philippines. See Wilson, 420 U.S. at 346 & n.15.
8
Jeopardy, 1978 Sup. Ct. Rev. 81, 123), and it imposes
substantial costs on the fairness of the criminal justice
system. As the Court has noted, it permits “the release
of some defendants who have benefited from instructions
or evidentiary rulings that are unduly favorable to them.”
Wilson, 420 U.S. at 352. In some cases, these defendants
may be clearly guilty of grave crimes, and in almost ail
these cases the error at trial is not the fault of the prose-
cutor but rather has been committed by the trial court
at the instigation of the defense.* Thus, in cases where a
verdict of acquittal results from a legal error, the effect
of the “special weight” accorded acquittals (see United
States v. DiFrancesco, 449 U.S. 117, 129 (1980)) is to
deny the government its “one full and fair opportunity”
to litigate the question of the guilt of the accused (see
Arizona v. Washington, 434 U.S. 497, 505 (1978) ); the
result is often a windfall for a guilty defendant.°
5 Indeed, the rule introduces a genuine anomaly into the criminal
justice system. If a defendant is tried and, following a trial error
committed at the behest of the prosecution (such as an erroneous
instruction), is convicted, the Double Jeopardy Clause does not
protect him from being subjected to a second trial following a suc-
cessful appeal. United States v. Tateo, 377 U.S. 463, 465-466
(1964); United States v. Ball, 163 U.S. 662 (1896). This is so
even though the tainted first trial cannot be said to have impaired
the presumption of innocence and the error at the trial was not the
fault of the defendant. On the other hand, a defendant who is
acquitted because of a trial error can never be retried. This is so
even though the tainted trial does not indicate that the prosecution
cannot prove the defendant’s guilt in a fair trial and even though
the error at trial may have been and probably was made at the
behest of the defendant. Thus, the defendant who is less “blame-
worthy” with respect to the defect in the original trial may be
subjected to the ordeal of a second trial, although there is no
objective basis for concluding that he is any more likely to be guilty
than the defendant who has been acquitted at a trial that he managed
to infect with error. See generally Westen, The Three Faces of
Double Jeopardy: Reflections on Government Appeals of Criminal
Sentences, 78 Mich. L. Rev. 1001, 1009, 1011-1012 (1980).
6 The anomalous results that can be occasioned by this rule are
illustrated by a case presently before this Court involving the
9
The judgment necessarily underlying the special pro-
tection of erroneous acquittals is that the double jeopardy
policies advanced by this rule outweigh its negative ef-
application of the Double Jeopardy Clause to capital sentencing
hearings. In Poland v. Arizona, cert. granted, No. 85-5023 (Oct. 7,
1985), the defendants were charged in a trial-type sentencing hear-
ing with being subject to the death penalty under two distinct
theories—murder committed “in expectation of the receipt of any-
thing of pecuniary value” or murder committed in an “especially
heinous, cruel or depraved manner.” At the hearing, the defendants
were found subject to the death penalty on thc ground that the
murder was committed in a cruel manner, but the judge held that,
as a matter of law, the defendants could not be found guilty under
the pecuniary gain theory because he believed that the statute ap-
plied only to murders-for-hire. The death sentence was vacated on
appeal on the ground that there was insufficient evidence to show
that the murders were committed in a cruel or depraved manner.
In the interim, however, the Supreme Court of Arizona had made
clear that the trial court’s original interpretation of the statute was
erroneous and that the pecuniary gain provision did cover murder
in the course of a robbery, which was what was involved in Poland.
On appeal from the entry of a death sentence again on remand, the
Arizona Supreme Court held that the Double Jeopardy Clause did
not bar the imposition of the death penalty on the pecuniary gain
theory. 144 Ariz. 388, 404, 698 P.2d 183, 198-199 (1985).
We are aware of nothing in existing double jeopardy principles
that would support any different conclusion. The defendants’ first
sentencing hearing resulted in a death sentence (i.e., a “conviction’”’),
and therefore there was no bar to a second proceeding on remand.
And the State had put forth the pecuniary gain theory at the first
proceeding and had adduced sufficient evidence at that hearing to
justify imposition of the death penalty. Since there was no failure
of proof, and an “acquittal” (i.e., denial of the request for the death
penalty) neither was nor should have been entered at the first
sentencing proceeding, the principles of Burks v. United States, 437
U.S. 1 (1978), have no application.
The correct result in Poland does seem anomalous, however, when
compared with Arizona v. Rumsey, No. 83-226 (May 29, 1984). In
Rumsey, the State sought the death penalty only on the pecuniary
gain theory, and it was rejected by the trial court, hearing the case
without a jury, on the basis of the same erroneous interpretation
of the statute made in Poland. In Rumsey, however, this Court held
that the Double Jeopardy Clause prevented Rumsey from being sub-
jected to a second sentencing proceeding in which the statute would
be correctly applied because he had been “acquitted” at the first
10
fects. Although it has never treated the matter exten-
sively, the Court has adverted on several occasions to
these policies. In Wilson, the Court noted that appeal
of acquittals would “allow the prosecutor to seek to per-
suade a second trier of fact of the defendant’s guilt
after having failed with the first; it would permit him
to reexamine the weaknesses in his first presentation in
order to strengthen the second; and it would disserve the
defendant’s legitimate interest in the finality of a
verdict of acquittal.” 420 U.S. at 352 (footnote omitted).
More generally, the Court has concluded that “[t]o per-
mit a second trial after an acquittal, however mistaken
the acquittal may have been, would present an unaccept-
ably high risk that the Government, with its vastly
superior resources, might wear down the defendant so
that ‘even though innocent he may be found guilty.’”
United States v. Scott, 487 U.S. at 91, quoting Green v.
proceeding. See slip op. 7-8. The only difference between Poland
and Rumsey is that the defendants in Poland had been “convicted”
at their first sentencing proceeding (on an erroneous theory) and
Rumsey had been erroneously “acquitted.” See Justices of Boston
Municipal Court v. Lydon, 466 U.S. 294, 307 (1984) (“The con-
ceptual difficulty for Lydon is that he has not been acquitted.”).
Logically, this fact does not suggest that they should be treated
differently with respect to whether they can be subjected to a
second sentencing hearing; why should the Poland defendants be
worse off because they were charged and convicted on an erroneous
theory?
The answer is that while logic and policy call for the two cases
to be treated the same, Rumsey involves the special rule for acquit-
tals, which may insulate defendants in cases where logic does not
suggest that they are being treated unfairly. Because the defend-
ants in both cases were guilty of committing murder for pecuniary
gain—and the State proved that at the first proceeding in both
cases—there would appear to be nothing unfair or unconstitutional
in subjecting the defendants in both cases to the death penalty on
the basis of the pecuniary gain theory; that would have been the
result at the first proceeding but for the legal error in the defend-
ants’ favor. The different result in these two cases amounts to a
windfall for Rumsey, and it is solely attributable to the special,
somewhat anomalous, treatment that has been accorded acquittals
under the Double Jeopardy Clause.
11
United States, 355 U.S. 184, 188 (1957).7 A noted com-
mentator, finding these and other suggested rationales
unpersuasive, has concluded that the rule is designed to
preserve the jury’s right to “acquit against the evidence.”
Westen, The Three Faces of Double Jeopardy: Reflec-
tions on Government Appeals of Criminal Sentences, 78
Mich. L. Rev. 1001, 1012-1023 (1980) ; see United States
v. DiFrancesco, 449 U.S. at 130 n.11.8 We mention this
matter not for the purpose of asking reconsideration of
the settled rule insulating a verdict of acquittal by the
finder of fact from prosecution efforts to secure a retrial,
but because we believe it sheds light on the question
whether the Court should confirm the extension of this
principle to the quite different setting of judicial rulings
on purely legal questions, which we now proceed to con-
sider.
2. A Ruling by the Court that the Evidence is Legally
Insufficient to Sustain a Guilty Verdict is not a
Verdict of Acquittal that Automatically Bars a
Retrial
a. The rule that a verdict of acquittal is an absolute
bar to a retrial does not answer the question presented
here. This case does not involve a verdict of acquittal
entered by the factfinder; it involves the sustaining of de-
murrers by the court, which entails a legal determination
that the evidence is insufficient to support a guilty ver-
7We suggest that such an analysis proves too much, since it is
equally applicable to retrials of defendants whose convictions at
their first trials were infected by prejudicial error—a practice of
undoubted validity.
8 Professor Westen’s jury nullification rationale seems to us sub-
ject to much the same criticism he directs at other rationales, viz.,
that the decision to nullify (if that is indeed what underlay the
verdict) is also likely to have been tainted by any errors the court
made in excluding prosecution evidence or misinstructing the jury
on material points of law.
12
dict.® It is well settled that such a ruling is reviewable
on appeal if entered after verdict, since in such a case
reversal would not necessitate a retrial (see United
States v. DiFrancesco, 449 U.S. at 130; United States v.
Jenkins, 420 U.S. 358, 365 (1975); United States v.
Singleton, 702 F.2d 1159, 1161 n.8 (D.C. Cir. 1983)
(collecting cases)). The standard of review of a Rule
29 (Fed. R. Crim. P.) acquittal is the same as for any
other legal ruling; no deference is paid to the trial court’s
assessment of the evidence, though that would be appro-
priate if it were a factual determination. See, e.g., United
States v. Singleton, 702 F.2d at 1161-1163; United States
v. Steed, 674 F.2d 284, 286 (4th Cir. 1982) (en banc).
We submit that there is no reason in law or policy
why the government should automatically be barred from
appealing an erroneous legal ruling of insufficiency even
if it is made prior to verdict. That is, we contend that
a court’s legal conclusion that the evidence is insufficient,
although labeled an “acquittal” in Rule 29, is not in
constitutional analysis the kind of true “acquittal” en-
titled to the special weight accorded to the factfinder’s
determination of innocence; rather, the judicial decision
to take the case away from the factfinder should be
reviewable on appeal to the same extent as other legal
errors, even if correction of an erroneous ruling would
necessitate a retrial.
®It is not material to this argument that this case involves a
bench trial, so that the ruling sustaining the demurrers in fact was
entered by the entity also responsible to act as factfinder. A de-
murrer is a motion addressed to the presiding court attacking the
legal sufficiency of the evidence. None of the courts below have
doubted that the court here did not act in its capacity as a fact-
finder, but rather entered a legal ruling. Indeed, the trial judge
clearly viewed his ruling as purely a legal determination, since he
stayed the trial in order to permit the appeal; if the judge had
intended to acquit the defendants in his capacity as factfinder (and
under state law he had no authority to do that at the close of the
prosecution’s case), he would not have recognized the Common-
wealth’s right to appeal. Therefore, for double jeopardy purposes,
the question of the appealability of the order sustaining the de-
murrers in this case is the same as if this were a jury trial.
13
At the outset, it is important to emphasize that the
double jeopardy issue arises in this context only when
the trial court has erred and the defendant has received
an unjustified termination of the trial in his favor; if
the trial court’s ruling is correct, it will be affirmed on
appeal and there will be no occasion for the further pro-
ceedings in the trial court that implicate the Double
Jeopardy Clause. The question then is whether there is
a double jeopardy policy that is sufficiently weighty to
justify making such errors unappealable, thereby confer-
ring a windfall acquittal on the defendant; we submit
that there is no double jeopardy interest of the defend-
ant implicated in this context at all, much less one that
would justify such an untoward result.
The Double Jeopardy Clause involves a balancing of
the interests of defendants against those of society in
seeing that the criminal justice system operates ration-
ally and that the guilty are brought to justice. See
United States v. Scott, 4837 U.S. at 92; United States v.
Tateo, 377 U.S. 463, 466 (1964). One of the important
interests of the defendant is his “ ‘valued right to have
his trial completed by a particular tribunal’” (United
States v. Dinitz, 424 U.S. 600, 606 (1976), quoting
Wade v. Hunter, 336 U.S. 684, 689 (1949) ); somewhat
akin to that is the government’s right to a “complete
opportunity to convict those who have violated its laws”
(Arizona v. Washington, 434 U.S. 497, 509 (1978)).
When a trial proceeds to verdict in the ordinary course,
both the defendant and the prosecution have received their
opportunity to obtain the judgment of the designated
factfinder. If the defendant is dissatisfied with that
judgment he may seek to have it overturned on the
ground that it is based on legal error. If the prosecution
is dissatisfied with the judgment, it does not have the
same option. The double jeopardy interests identified in
the preceding section are deemed to outweigh the prose-
cution’s interests in an error-free opportunity to convict.
This relatively straightforward scheme is disrupted
when the trial is terminated before the factfinder has
14
an opportunity to enter a verdict. The defendant has ~
not had his trial completed by a particular tribunal; if
his trial is to be completed now, he will have to be sub-
jected to a second jeopardy, which raises a question under
the Double Jeopardy Clause. On the other hand, if the
defendant is not subjected to a retrial despite the errone-
ous and premature termination of his first trial, the
prosecution will have been denied its one complete oppor-
tunity to convict him.
In balancing the relevant double jeopardy interests in
such cases, the Court has placed great importance on
whether the termination of the first trial was at the in-
stance of the defendant or against his will. When the first
trial ends in a mistrial (a neutral conclusion), the basic
governing principles have long been settled and the con-
stitutionality of a retrial turns almost entirely on this
factor. If the defendant has moved for a mistrial, he can
always be retried except in the very rare case in which
the mistrial was deliberately provoked by prosecutorial
misconduct (in which case it is not really the result of a
choice by the defendant). See generally Oregon v. Ken-
nedy, 456 U.S. 667 (1982). If the mistrial is granted
over the defendant’s objection, however, a retrial is barred
by the Double Jeopardy Clause unless the decision to
grant a mistrial was due to “manifest necessity” —a bur-
den that is satisfied if there is a hung jury but otherwise
can be a fairly difficult one to carry. See Arizona V.
Washington, supra; United States v. Perez, 22 U.S. (9
Wheat.) 579 (1824) .*°
10 Like the rule giving special finality to acquittals, this rule
carries with it the potential cost that guilty defendants will go free
despite the absence of any error attributable to the prosecution.
See, e.g., United States v. Jorn, 400 U.S. 470 (1971) ; United States
v. Sartori, 730 F.2d 973 (4th Cir. 1984) (mistrial declared because
of trial judge’s decision to recuse himself because of strong personal
reaction to evidence of defendant’s misdeeds held not based on
“manifest necessity” and hence retrial barred). In these circum-
stances, the defendant’s double jeopardy interest in a complete first
trial is deemed to outweigh society’s interest in bringing the guilty
to justice.
15
The Court has only recently had to grapple with the
situation where the trial is terminated prematurely by
a ruling in favor of the defendant, rather than by the
declaration of a mistrial."' The question of a retrial in
such a case arises only if the ruling is tainted by legal
error and the prosecution succeeds in having it over-
turned on appeal. Thus, with rare exceptions, this gen-
eral issue did not arise until the Double Jeopardy Clause
was applied to the states in 1969 and the federal statute
governing prosecution appeals (18 U.S.C. 3731) was ex-
panded in 1970 to give the government the right to ap-
peal from rulings in favor of the defendant to the extent
not barred by the Double Jeopardy Clause. The Court’s
first response to this issue was to set forth a categorical
rule that an order terminating a trial in favor of a
defendant can never be appealed if reversal on appeal
would necessitate a retrial. United States v. Jenkins,
420 U.S. at 369-370. As more experience with govern-
ment appeals in criminal cases accumulated, however,
the Court reconsidered the balance of double jeopardy in-
terests it had made in promulgating this categorical]
rule. In United States v. Scott, supra, the Court over-
ruled Jenkins and held that whether the premature
termination of the trial is at the defendant’s behest or
is forced upon him is of crucial importance in this con-
text, as it is in the mistrial context.
In Scott, the defendant sought and was granted dis-
missal of the indictment in the middle of his trial on
the ground of preindictment delay. The Court held that
the Double Jeopedy Clause did not bar an appeal of
this order or the retrial that would result from reversal.
The Court explained that the double jeopardy principle
protecting defendants against repeated attempts to con-
vict them could not “be expanded to include situations
in which the defendant is responsible for the second
11 A trial may not be terminated prematurely in favor of the
prosecution. See United States v. Martin Linen Supply Co., 430
U.S. 564, 572 (1977) ; Sparf & Hansen v. United States, 156 U.S. 51,
105 (1896).
16
prosecution” (437 U.S. at 95-96). Instead, the Court
equated the defendant’s motion with a motion for a
mistrial, which “is deemed to be a deliberate election
on his part to forgo his valued right to have his guilt
or innocence determined before the first trier of fact”
(id. at 93). The Court concluded that “the Double
Jeopardy Clause, which guards against Government op-
pression, does not relieve a defendant from the conse-
quences of his voluntary choice” (id. at 99).
In our view, the rationale of Scott compels the con-
clusion that the appeal in this case does not violate the
Double Jeopardy Clause. As in Scott, the defendants
here have “not been ‘deprived’ of [their] valued right
to go to the first [tribunal]; only the public has been
deprived of its valued right to ‘one complete opportunity
to convict those who have violated its laws’” (437 U.S.
at 100, quoting Arizona v. Washington, 434 U.S. at
509). Here, the prosecution “was quite willing to con-
tinue with [the trial] to show the defendant guilty be-
fore the jury first empaneied to try him, but the defend-
ant elected to seek termination of thie trial,” which is “a
far cry” from the situation where a defendant has been
acquitted at the close of trial (see 437 U.S. at 96). Un-
der Scott, appeal here can be barred only if the court’s
action sustaining the demurrer is considered an “acquit-
tal” and accorded the special weight that the Double
Jeopardy Clause assigns to verdicts of acquittal, even if
erroneous. We submit that neither logic nor the policies
of the Double Jeopardy Clause identified by this Court
support treating the order entered here the same as a
jury’s verdict of acquittal.
When the defendant has voluntarily elected to seek
premature termination of his trial on the ground of evi-
dentiary insufficiency, a retrial does not implicate the
double jeopardy concerns that have been identified at
justifying the special treatment of acquittals (see pages
10-11, supra). A second trial would not “allow the prose-
cutor to seek to persuade a second trier of fact of the de-
fendant’s guilt after having failed with the first” (Wil-
son, 420 U.S. at 352) because the defendant’s own action
17
has prevented the prosecutor’s case from reaching the
first trier of fact. Nor does a second trial present any
risk that the prosecution will “wear down” the defendant
(United States v. Scott, 487 U.S. at 91) when the first
trial was aborted before it reached the factfinding stage.
The defendant is not being forced to “‘run the gantlet’
a second time” (Ashe v. Swenson, 397 U.S. 436, 446
(1970), quoting Green v. United States, 355 U.S. at
190) because, in contrast to the case where there has
been a true acquittal by the factfinder, he has taken ac-
tion to terminate the trial before it is turned over to the
factfinder and therefore before he has been exposed to
any genuine risk of conviction. Cf. Justices of Boston
Municipal Court v. Lydon, 466 U.S. 294, 310 (1984)
(noting that defendant in “jeopardy” only in technical
sense when virtually nothing harmful can happen to him
at his first-tier trial). And, of course, to the extent the
special treatment of acquittals rests on the jury’s power
to “ ‘acquit against the evidence’” (United States v. Di-
Francesco, 449 U.S. at 130 n.11), it has no application
to a legal ruling by the court that must be based on the
evidence and applicable law.
Indeed, the Court has already recognized that a judi-
cial ruling of evidentiary insufficiency is substantially
different for double jeopardy purposes from a verdict of
acquittal. A post-verdict finding of insufficiency by the
court is appealable just like a post-verdict dismissal on
preindictment delay grounds (compare United States v.
DiFrancesco, 449 U.S. at 130, with United States v. Wil-
son, supra), although an acquittal by the factfinder would
not be appealable. There is no reason why a midtrial
termination, at the defendant’s behest, on grounds of
legal insufficiency should not similarly be treated like
a dismissal on other +. gal grounds and be held appealable
(see United States v. Scott, supra). See generally Wes-
ten, supra, 78 Mich. L. Rev. at 1020-1021.
A rule granting absolute finality to midtrial judicial
rulings of legal insufficiency carries with it substantial
costs for our criminal justice system. Under Fed. R.
Crim. P. 29, numerous prosecutions are terminated by
18
the court before verdict, some of them on plainly errone-
ous grounds that have been held to be unappealable be-
cause of the Double Jeopardy Clause. See, e.g., United
States v. Giampa, 758 F.2d 928, 934-935 (3d Cir. 1985) ;
United States v. Ellison, 684 F.2d 664, 666, vacated, 722
F.2d 595 (10th Cir. 1982); see also Pet. App. A4; United
States v. Ember, 726 F.2d 522, 523-524 & n.4 (9th Cir.
1984) (ambiguous ruling in bench trial before prosecu-
tion had completed presentation of its evidence held to be
unappealable acquittal). Indeed, the rule creates a
mechanism under which trial judges can deliberately in-
sulate from judicial review legal rulings that would be
reviewable if made at another time. See Ellison, 684 F.2d
at 666 (noting that in recent prior case court of appeals
had reversed post-verdict acquittal by same judge) ;
United States v. Appawoo, 553 F.2d 1242, 1246-1247
(10th Cir. 1977) (judge informed tawyer that he would
be guilty of “poor legal representation” if he made mo-
tion to dismiss before attachment of jeopardy because a
pre-jeopardy ruling could be appealed).
While it may be necessary, because of the double
jeopardy policies identified above, to live with some mis-
carriages of justice when a genuine acquittal is entered
by the factfinder, there is nu reason to do so when the
defendant himself voluntarily has chosen to terminate
the trial prematurely. As the Court has noted in the mis-
trial context, “it may be wondered as a matter of
original inquiry why the defendant’s election to termi-
nate the first trial by his own motion should not be
deemed a renunciation of that right [to have his trial
completed before the first factfinder] for all purposes.”
Oregon Vv. Kennedy, 456 U.S. at 673. In that context,
there is a logical—and quite limited—exception to this
proposition when the mistrial is intentionally provoked
by the prosecution. But here there simply is no relevant
double jeopardy interest to be protected that warrants
an exception. The defendant has not been deprived of
his valued right to present his case to the first factfinder ;
he has abandoned that right for reasons that seem appro-
19
priate to him.” When the grounds for the midtrial rul-
ing in his favor turn out to be erroneous, there is no
reason to confer a windfall upon him instead of requir-
ing him to undergo one full trial. A contrary rule
“would create an insuperable obstacle to the administra-
tion of justice in many cases in which there is no sem-
blance of the type of oppressive practices at which the
double-jeopardy prohibition is aimed.” Wade v. Hunter,
336 U.S. at 688-689.
b. We recognize that our submission above diverges
from the definitions of acquittal that this Court has put
forth on several occasions. Even in Scott, whose analysis
and holding strongly support our position, the Court dis-
tinguished between the preindictment delay ruling in-
volved there, which was collateral to guilt or innocence,
and a ruling that plainly indicates that the trial court
“ ‘evaluated the Government’s evidence and determined
that it was legally insufficient to sustain a conviction’ ”
(437 U.S. at 97, quoting United States v. Martin Linen
Supply Co., 480 U.S. 564, 572 (1977) ). If this definition
of acquittal is applied here, there is no doubt that the
appeal would be barred because the trial court’s decision
represented a finding that the prosecution had failed to
prove petitioners’ guilt on the offenses as to which the
demurrers were sustained.
It is our submission that this definition of acquittal is
unduly expansive and that the policies that support giv-
ing special weight to acquittals extend only to determina-
tions of not guilty by the factfinder. As a general rule,
this more restrictive definition is fully consistent with the
12 We do not suggest that the defendant should be precluded from
seeking a midtrial termination on grounds of evidentiary insuffi-
ciency. He may have good reasons for doing so and should not be
forced to continue with a trial that may be unnecessary. But when
a defendant seeks and obtains such relief it is not unreasonable to
hold that he has assumed the risk of a retrial if it turns out that
he was not entitled to prevail. See Scott, 437 U.S. at 100 n.13.
We reiterate that, under the rule we propose, the defendant runs
no risk of retrial by seeking any relief in the middle of trial unless
in fact he is not entitled to that relief.
20
holdings of the Court in those cases in which the Court
has indicated that a judicial determination of insuffi-
ciency is an acquittal; as in Scott, the statement that a
judicial finding of insufficiency is an “acquittal” is dic-
tum. For example, in Tibbs v. Florida, 457 U.S. 31, 41
(1982), the Court stated that a finding of not guilty by
the trial judge “absolutely shields the defendant from
retrial” to the same extent as a jury acquittal. Tibbs in-
volved, however, the application of the rule of Burks v.
United States, 4837 U.S. 1 (1978), which concerns the
impact of a legally valid finding of insufficiency on the
state’s ability to conduct a retrial. See also Richardson V.
United States, No. 82-2113 (June 29, 1984), slip op. 9
n.5; Hudson v. Louisiana, 450 U.S. 40 (1981). Burks
simply holds that the prosecution is not permitted a sec-
ond opportunity to prove its case when an appellate court
has found correctly that it has had one full and fair
opportunity to do so and has failed; Burks does not sug-
gest that an erroneous judicial finding of not guilty is
not subject to correction.’* Indeed, the Court’s later dis-
cussion in Tibbs makes it clear that it was focusing on
the situation where the evidence was correctly held to be
insufficient. See 457 U.S. at 42.
Moreover, the Court’s statements on this point have
not been completely uniform. In Arizona v. Rumsey, No.
83-226 (May 29, 1984), slip op. 7, 8, the Court defined
an acquittal that bars a retrial as one made by the “sole
decisionmaker,” suggesting that a legal finding of in-
sufficiency by the judge in a jury trial would not be con-
sidered an acquittal. See also Tibbs v. Florida, 457 U.S.
at 49 (White, J., dissenting) (suggesting that ‘“acquit-
tals” are entered by the factfinder). Indeed, the Court’s
13 We eriphasize that the rule that we propose here is fully con-
sistent with Burks. When either the trial court or the appellate
eo: ~rrectly held the evidence insufficient at the first trial,
. aspects of double jeopardy bar the prosecution from a
second wite at the apple. But when the trial court, at the defend-
ant’s behest, has made an erroneous determination of insufficiency,
there is no reason to deny the prosecution one opportunity to prove
its case.
21
statements regarding the special status of acquittals have
been read by one leading commentator to apply only to
jury verdicts of not guilty. See Westen, supra, 78 Mich. L.
Rev. at 1021-1023, 1034 n.99. Be that as it may, we sug-
gest that the various dicta setting forth a more expansive
definition of acquittals should not foreclose consideration
of a narrower definition in this case, where the result
may turn on the scope of that definition.
The idea that a judicial finding of insufficiency is not
appealable if it would necessitate a retrial is not grounded
solely in dictum, for there is one decision of this Court
whose holding is inconsistent with our submission here.
In United States v. Martin Linen Supply Co., supra, the
first trial of the defendants ended in a hung jury. The
court thereafter granted the defendants’ timely filed
Rule 29(c) motion for a judgment of acquittal. This
Court held that this ruling could not be appealed con-
sistent with the Double Jeopardy Clause because a re-
trial would be required, even though, in the absence of
the court’s order, there would have been no bar to a
second trial following a hung jury. The Court’s decision
rested on the premise that a judicial finding of insuffi-
cient evidence, even if erroneous, was entitled to the same
special protection as an acquittal. 480 U.S. at 572-575.
We submit that it is appropriate for the Court to re-
consider Martin Linen here.*
14 We do not regard either Sanabria v. United States, 487 U.S. 54
(1978), or Fong Foo v. United States, 369 U.S. 141 (1962), on
which the Court in Martin Linen relied heavily (see 430 U.S. at
573-574), as inconsistent with the rule we propose here. In
Sanabria, the trial court had rejected one of the two theories under
which the prosecution was proceeding and suppressed all evidence
pertaining to that theory; that done, it correctly concluded that the
remaining evidence was insufficient to convict Sanabria of the
charged offense. Because of a statutory bar to review of the ruling
suppressing all the evidence against Sanabria, no appeal was taken,
and the judgment in his favor became res judicata. The issue in
Sanabria was whether the government could reindict and retry
Sanabria when an intervening decision of the court of appeals
showed that the court had erred in rejecting the theorv that had
22
As noted above, there is no apparent reason why an
erroneous legal ruling on insufficiency should be treated
differently from any other legal error, and hence an or-
der sustaining a demurrer ought to be appealable under
Scott. It is clear that such a ruling is not equivalent to
an acquittal by the factfinder, else it would not be ap-
pealable even when entered after verdict, and there is
no apparent reason why it should become unreviewable
when it occurs during the trial. See generally Westen,
supra, 78 Mich. L. Rev. at 1064 n. 221. The opinion in
Martin Linen does not address the reasons for equating
an acquittal by the judge with an acquittal by the jury,
been the basis of the first prosecution. The answer to this question
turned on an assessment of the scope of the order entered by the
trial court, and this Court concluded that Sanabria could not be
retried because he had already been acquitted of the “same offense.”
In the course of its discussion, the Court noted that the insufficiency
ruling on the first theory was “unreviewable” (437 U.S. at 64). That
statement is inconsistent with the position we take here, but it was
not made in connection with an issue that was before the court. The
government never sought to retry Sanabria on the first theory, and
the question whether the court’s ruling could be appealed never was
raised. For a detailed discussion of Sanabria, see Westen & Drubel,
supra, 1978 Sup. Ct. Rev. at 163-168.
In Fong Foo, the district court entered vhat it termed a “judg-
ment of acquittal” after the prosecution hao put on three witnesses,
but well before the prosecution had begun to introduce the major
elements of its case. This order, which the court of appeals’ opinion
indicates was prompted largely by what the trial court viewed as
government misconduct (see Jn re United States, 286 F.2d 556, 559-
560 (1st Cir. 1961) ) cannot be deemed an acquittal within the mean-
ing of Scott and Martin Linen. The court could not possibly have
made an assessment of the defendants’ “factual guilt or innocence”’
because the prosecution had barely begun to put on its case. Compare
Serfass Vv. United States, 420 U.S. 377, 389 (1975). The Court’s
decision in Fong Foo reflects the view later set forth more explicitly
in Jenkins (which also relied on Fong Foo, see 420 U.S. at 369; id.
at 370 (Douglas, J., concurring) ) that, except in highly unusual
circumstances, any midtrial termination in the defendant’s favor
bars an appeal that would result in a retrial. Thus, whatever vitality
the oft-quoted statement in Fong Foo regarding the special treat-
ment accorded to genuine verdicts of acquittal retains, its holding,
like Jenkins, cannot survive Scott.
23
since it speaks almost exclusively to the government’s
contention that a retrial was permissible there because a
mistrial had already been declared due to a hung jury.
The Court simply assumed that a judicial finding of in-
sufficiency rendered in the middle of trial would be un-
appealable, viewing that proposition as “necessarily con-
cede[d]” (430 U.S. at 574) by the government,” and it
devoted its discussion to the question whether the ap-
pealability of such an order should differ depending on
whether it was issued before or after the jury’s delibera-
tions.
The Court need not recede from its conclusion that
“judgments under Rule 29 are to be treated uniformly”
(430 U.S. at 575) in order to reconsider its premise that
they cannot be appealed if entered prior to verdict. In
addition, the Court relied in part on its assertion that
“the judge’s authority under Rule 29 is designed to pro-
vide additional protection to a defendant by filtering out
deficient prosecutions” (430 U.S. at 575), and hence ap-
pealability ought not to depend on timing. Subsequent de-
velopments have shown that broad application of this
premise is unjustified, because it is now established that
a post-verdict grant of a Rule 29 motion is appealable
(see United States v. DiFrancesco, 449 U.S. at 180). See
Cooper, Government Appeals in Criminal Cases: The 1978
Decisions, 81 F.R.D. 539, 542 (1979). In light of Scott’s
holding that an order granting the defendant’s motion
for a midtrial termination in his favor may be appealed,
the logical force of the decision in Martin Linen has been
undermined and now rests only on a premise that has
never been fully considered by this Court. See Westen &
Drubel, supra, 1978 Sup. Ct. Rev. at 132. The Court
should reaffirm this premise only if it is satisfied that
sound grounds exist for treating an erroneous legal rul-
© We find no such concession in the government’s brief (see Brief
for the United States, No. 76-120, at 12-19), but what is relevant for
present purposes is that the Court found no occasion to consider the
arguments on the point.
24
ing of insufficiency differently from other legal rulings
erroneously terminating a trial in the defendant’s favor.
While the Court has not until now had occasion to re-
examine the validity of the underlying premise of Mar-
tin Linen, one recent decision casts some doubt upon it.
In Tibbs v. Florida, supra, the trial court had ordered a
new trial following conviction on the ground that the
guilty verdict was not supported by the “weight of the
evidence.” This Court held that Burks did not bar a re-
trial in that situation because the court’s finding was
not a finding that the prosecution had failed to put on a
case that could be credited by a rational factfinder. There
is considerable tension between the results of Tibbs and
Martin Linen. On the one hand, there is no bar to a
retrial where the trial court correctly concludes that a
guilty verdict is against the weight of the evidence; on
the other hand retrial is barred when the trial court
erroneously rules that the evidence is insufficient. Al-
though it is difficult to compare these two situations di-
rectly, it would appear to be the former that more
strongly suggests that retrial carries undue risk of wear-
ing down and convicting an innocent person.
In Scott, this Court noted that its initial double jeop-
ardy decisions under the modern version of 18 U.S.C.
3731 were rendered without benefit of the “lessons of
experience” (437 U.S. at 101), and consequently the
Court overruled one of those early decisions in light of
the Court’s “vastly increased exposure” (id. at 86) to
the ramifications of the application of the Double Jeop-
ardy Clause to government appeals. Martin Linen does
not fit comfortably within the framework of current dou-
ble jeopardy analysis (see Westen, supra, 78 Mich. L.
Rev. at 1040 n.146), and the rule it contemplates—giv-
ing erroneous judicial findings of insufficiency the same
special protection accorded to acquittals by the factfinder
—is contrary to the view of many respected commenta-
tors.** In our view, the holding of Martin Linen is logi-
16 See Westen, supra, 78 Mich. L. Rev. at 1005-1023, 1040-1042,
1064-1065; Cooper, Government Appeals in Criminal Cases: The
1978 Decisions, 81 F.R.D. 539, 555 (1979); M. Friedland, Double
oe ee
25
cally troublesome, and experience has shown that it has
a serious adverse effect on the administration of justice.
We urge the Court to reconsider it.
Jeopardy 310 (1969); J. Sigler, Double Jeopardy 114-115 (1969) ;
Mayers & Yarbrough, Bis Vexari: New Trials and Successive Prose-
cutions, 74 Harv. L. Rev. 1 (1960).
17 Should the Court adhere to the view of Martin Linen that at
least some judicial rulings of evidentiary insufficiency ought to be
treated like acquittals by the factfinder for double jeopardy pur-
poses, we note that a clarification of the definition of “acquittal”
would be most desirable. In order for a judicial ruling to be treated
as a double jeopardy acquittal, it should at a minimum reflect a
finding by the court that, as a factual matter, the prosecution failed
to prove its case. There are cases, however, where the granting of
a Rule 29 motion does not in fact reflect any such finding, but rather
is based on a legal error collateral to the sufficiency of the evidence.
Rule 29 acquittals or demurrers can fall into one of three basic
categories. First, where the court concludes, based on a correct view
of the law, that the evidence viewed in the light most favorable to
the government is insufficient, it has ruled on a mixed question of
law and fact that bears some resemblance to a jury acquittal
(though the court’s conclusion can still be legally erroneous). Sec-
ond, where a court enters an “acquittal” on grounds of insufficiency
because it disbelieves part of the prosecuticn’s evidence, it has
committed a serious legal error in exceeding the scope of its power.
Even there, however, the court’s error represents a judgment about
the strength of the prosecution’s case, albeit under an incorrect
standard of review. Third, the court’s ruling may be grounded in a
misinterpretation of the governing law and therefore not in any way
represent a judgment that the evidence is insufficient under a correct
view of the law.
The most glaring instance of the latter category is where the
court misapprehends the elements of the charged offense and there-
fore holds the evidence insufficient because the prosecution failed
to prove a nonexistent element. For example, prosecutions have been
lost because the trial court erroneously believed that the prosecution
was required to prove that the defendant personally prepared false
tax returns in order to convict him of procuring the filing of false
returns in violation of 26 U.S.C. 7206(2) (see United States v. Head,
697 F.2d 1200, 1208 & n.13 (4th Cir. 1982), cert. denied, 462 U.S.
1132 (1983) ) or because the trial court erroneously believed that a
violation of 18 U.S.C. 922(h) could not be shown if the firearm was
no longer moving in commerce at the time of receipt (see United
States vy. Medeiros, No. 80-1399 (D. Hawaii Apr. 23, 1981); ef.
Barrett v. United States, 423 U.S. 212 (1976)). See also Finch v.
26
B. There Is No Double Jeopardy Bar To Appeal Of A
Midtrial Judicial Ruling Of Insufficiency If A Success-
ful Appeal Would Simply Result In a Resumption Of
The First Trial
Even if the Court rejects our argument in Point A
and holds that a defendant may not be subjected to a
second trial following the entry of an order terminating
the first trial on the basis of a judicial finding of insuffi-
cient evidence, the grant of the demurrer here is none-
theless appealable because no retrial would be necessitated
by a reversal on appeal. The trial court recessed the trial
in this case in order to await the outcome of the prosecu-
tion’s appeal. If the appeal succeeds, the case will be
remanded for resumption of the first trial before the
same factfinder, not for a second trial.’* While we ac-
United States, 483 U.S. 676 (1977). Or the court may, as in
Sanabria, erroneously suppress evidence crucial to the prosecution’s
case and then find the remaining evidence insufficient. See United
States v. Fay, 553 F.2d 1247 (10th Cir. 1977).
It is not clear whether such rulings are appealable under present
law. On the one hand, these rulings appear to fall within one of the
Martin Linen/Scott definitions of an acquittal (see page 19, supra)
because the court ultimately resolves the case on the basis of a con-
clusion that guilt has not been established by the evidence. On the
other hand, they arguably do not meet another of the definitions
because the court has not truly resolved in the defendant’s favor
“‘some or all of the factual elements of the offense charged’”
(Scott, 437 U.S. at 97, quoting Martin Linen, 430 U.S. at 571). What
we believe is clear is that there is no conceivable justification for
treating such rulings as acquittals for double jeopardy purposes.
Certainly when neither the factfinder nor the court has concluded
that, under a proper view of the law, the prosecution has failed to
prove its case, it is inappropriate to apply the special protection
accorded to acquittals to insulate the court’s error from appellate
review. The principles of Scott plainly justify an appeal in that
situation (as long as the midtrial termination is at the defendant’s
behest), and the definition of “acquittal” ought to be clarified
accordingly.
18 Even if the trial had not been formally recessed, it is arguable
that the proceedings required on remand should be considered a
resumption of the first trial, rather than a second trial, since this
is a bench trial and the proceedings would take place before the
same factfinder who participated in the earlier proceedings. Cf.
Mie re
27
knowledge that there may be substantial problems in this
particular case with simply resuming the trial after the
passage of so much time, these are not double jeopardy
pre>lems, and they exist equally with respect to the counts
on “wich the demurrers were rejected as to those on which
they were upheld. As far as the Double Jeopardy Clause
is concerned, and therefore as far as the issue before this
Court is concerned, this case is indistinguishable from
United States v. Ellison, supra, in which the government
sought a writ of mandamus while the trial was recessed
over a weekend, in an effort to compel the district court
to vacate its order granting a Rule 29 motion. Accord-
ingly, while the issue of permissibility of midtrial correc-
tion of an erroneous Rule 29 determination (or its state
equivalent) arises here in a peculiar posture, it is an
important one that could have broad implications for the
administration of justice.’
In Ellison, at the close of the government’s case in an
exceptionally important fraud prosecution, the trial court
Jenkins, 420 U.S. at 368-370 (rejecting this argument), overruled,
Scott, 487 U.S. at 87, 101. Because there is no doubt here that the
first trial has been continued, however, this issue is not presented
in this case.
19Tf there is no double jeopardy bar to the correction cf an
erroneous granting of a Rule 29 motion while the trial is still in
progress, the legislature can decide whether to take steps to facili-
tate such corrections. For example, if Congress decides that the
problem is sufficiently important, it could amend Rule 29 to allow
for expedited review of insufficiency rulings. Alternatively, it could
allow for limited review on an expedited basis of such orders with
the court of appeals’ function restricted to deciding whether there
is sufficient doubt about the correctness of the trial court’s termina-
tion of the trial to warrant ordering the completion of the trial and
postponement of the trial court’s Rule 29 ruling until after
verdict—the course of action that this Court has identified as
preferable in most cases. See Scott, 437 U.S. at 100 n.13; United
States v. Ceccolini, 485 U.S. 268, 271 (1978). On the other hand, if
there is a constitutional bar to such review, the legislature’s latitude
for action is more limited. It is conceivable that if it is unwilling
to live with a significant number of erroneous midtrial terminations,
thus allowing some guilty defendants to go free, the legislature
might decide to eliminate entirely the defendant’s right to seek a
midtrial termination, although the defendant has a legitimate inter-
est in such relief in many cases (see Scott, 437 U.S. at 100 n.13).
2E
granted the defendants’ Rule 29 motions for judgments
of acquittal with respect to most of the charges pending
against them, on grounds that the court of appeals found
difficult to understand. Before the trial on the remaining
counts was resumed, a panel of the court of appeals, by
a 2-1 vote, granted a writ of mandamus and set aside the
trial court’s order, without prejudice to reinstatement fol-
lowing verdict. The panel stated that there was no dou-
ble jeopardy problem with this action because no succes-
sive trials were involved, the jury having not yet been
discharged. 684 F.2d 664. The next day, the en banc
court vacated the panel decision and held that resumption
of the trial on these counts would violate double jeopardy.
722 F.2d 595. The reasoning of the en banc court pre-
sumably was that expressed by Judge McWilliams in his
dissent from the panel opinion. He concluded that the
reinstatement of the charges once the court had entered
a judgment of acquittal on insufficient evidence grounds
was “a form of ‘second trial’”’ and therefore barred under
Martin Linen. 684 F.2d at 667. This conclusion does
not withstand analysis.
The Double Jeopardy Clause protects a defendant from
being twice placed in jeopardy for the same offense. It
is not apparent why a single trial should violate this
prohibition just because, during the course of the trial,
the trial court had erroneously ruled that the evidence
was insufficient and was promptly corrected by the ap-
pellate court. If the trial court entered such a ruling and
then reconsidered and vacated its order itself before the
jury was discharged, it could hardly be thought that the
Double Jeopardy Clause would prevent the trial from
proceeding to its conclusion. See Sanabria v. United
States, 487 U.S. 54, 59-60 (1978). There is no reason
why the intervention of an appellate court should convert
the continuation of the trial into a second jeopardy.
In Swisher v. Brady, 438 U.S. 204 (1978), the Court
considered the validity of a system of state juvenile court
adjudications in which a hearing is held before a master
who makes findings and recommendations. This Court
held that a reversal by a judge, upon appeal by the state,
29
of a master’s finding of not guilty does not violate the
Double Jeopardy Clause. The Court explained that the
appeal to the judge following a not guilty determination
did not place the defendant twice in jeopardy because it
was all part of a single proceeding. Jd. at 215. The Court
emphasized that the state procedure at issue in Swisher
did not impinge on the policies of the Double Jeopardy
Clause because it did not allow the prosecution a “sec-
ond crack” at supplying evidence that it failed to muster
in the first proceeding. Jd. at 215-216. The permissibility
of continuing with a trial after an erroneous demurrer
has been reversed follows a fortiori from Swisher. The
defendant is subjected to only one trial and the prosecu-
tion is given no opportunity to improve its case; the
original trial simply proceeds to its conclusion. Moreover,
here, unlike Swisher, there has not been any factual de-
termination with respect to guilt or innocence; the func-
tion of the master in Swisher was to make factual find-
ings, but the presiding judge in this case was simply
making a ruling of law.
The fact that the finding of evidentiary insufficiency
was made here by the trial court does not suggest a
different result. This Court has already held in Serfass
v. United States, 420 U.S. 377 (1975), that there is no
bar to trial proceedings following an “acquittal” entailing
a judicial finding of insufficiency. There, the trial court
dismissed the indictment prior to trial because it found
from documents submitted prior to trial that one of the
elements of the offense could not be established. While
this ruling was undoubtedly an “acquittal” in the same
sense as the sustaining of the demurrers here, the Court
held that a trial following reversal on appeal would not be
barred because it would be a permissible first jeopardy,
not an impermissible second jeopardy. The same is true
here; the proceedings following a reversal of the grant
of the demurrers would be a continuation of the first
jeopardy.
It is no response to this analysis to maintain that the
defendant has some indefeasible right to the benefit of
the court’s ruling in his favor concerning the sufficiency
30
of the evidence. It is well established by now that a post-
verdict judicial finding of insufficiency may be reversed
on appeal and a guilty verdict reinstated. If the de
fendant has no right to retain the benefit of that ruling,
he has no right to retain the benefit of the same ruling
made midtrial, if the trial can be resumed and results in
a valid guilty verdict by the factfinder. In sum, the Dou-
ble Jeopardy Clause does not bar reversal of an erroneous
midtrial judicial finding of insufficient evidence as long
as that error can be corrected before the trial is termi-
nated, and thus without placing the defendant in jeopardy
a second time.
CONCLUSION
The petition for a writ of certiorari should be dismissed
for lack of jurisdiction. Alternati' ..y, the judgment of
the Supreme Court of Pennsylvania should be affirmed.
Respectfully submitted.
CHARLES FRIED
Solicitor General
STEPHEN S. TROTT
Assistant Attorney General
Ee ae ANDREW L. FREY
Deputy Solicitor General
ALAN I. HOROWITZ
Assistant to the Solicitor General
FEBRUARY 1986
20In addition to this Court’s statement in DiFrancesco, 449 U.S.
at 130, and the unanimous court of appeals’ decisions cited above
(see page 12, supra), we note that this Court’s decision in Wilson
plainly stands for this proposition. In Wilson, this Court approved
the reversal on appeal of a post-verdict resolution in the defendant’s
favor on preindictment delay grounds. It is now clear in light of
Scott that the order in Wilson was not an “acquittal,” but the Court
in Wilson expressly stated that it was unnecessary to decide there
whether the order was an “acquittal” or not (420 U.S. at 836).
Thus, Wilscn stands for the proposition that a post-guilty-verdict
acquittal is appealable.
WY Uv. &. GOVERNMENT PRINTING OFrice 1986 491507 20149
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