Opinion — United States v. Wilson

(Slip Opinion)

NOTE: Where it is feasible, a syllabus (headnote) will be re-

leased, as is being done in connection with this case, at the time

the opinion is issued. The syllabus constitutes no part of the opinion

of the Court but has been prepared by the Reporter of Decisions for

the convenience of the reader. See United States v. Detroit Lumber

Co., 200 U.S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

UNITED STATES v. WILSON

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE THIRD CIRCUIT

No. 73-1395. Argued December 9, 1974—Decided February 25, 1975

The jury entered a guilty verdict against respondent for a federal

offense, but on one of respondent’s postverdict motions the District

Court dismissed the indictment on the ground that the delay

between the offense and the indictment prejudiced respondent’s

right to a fair trial. The Court of Appeals dismissed the Govern-

ment’s appeal on the ground that the Double Jeopardy Clause

barred review of the District Court’s ruling. Because the ruling

was based on facts brought out at the trial, the Court of Appeals

held it was in effect an acquittal. Held: When a trial judge rules

in favor of the defendant after a guilty verdict has been entered

by the trier of fact, the Government may appeal from that ruling

without contravening the Double Jeopardy Clause. Pp. 3-21.

(a) That Clause protects against Government appeals only

where there is a danger of subjecting the defendant to a second

trial for the same offense, and hence such protection does not

attach to a trial judge’s postverdict correction of an error of law

which would not grant the prosecution a new trial or subject the

defendant to multiple prosecutions. Pp. 7-21.

(b) Here the District Court’s ruling in respondent’s favor could

be disposed of on appeal without subjecting him to a second trial

at the Government’s behest. If he prevails on appeal, the matter

will become final, and the Government will not be permitted to

bring a second prosecution for the same offense, whereas if he

loses, the case must return to the District Court for disposition

of his remaining motions. P. 21.

492 F. 2d 1345, reversed and remanded.

MaksHALL, J., delivered the opinion of the Court, in which BurGER,

C. J., and Stewart, WHITE, BLACKMUN, PoweELL, and REHNQUIST,

JJ., joined. Dovcuas, J., filed a dissent ing opinion in which BreNn-

NAN, J., joined.

Qu aree gg

NOTICE : This opinion is subject to formal revision before publication

in the preliminary print of the United States Reports. Readers are re-

uest to notify the Reporter of Decisions, Supreme Court of the

Inited States, Washington, D.C. 20543, of any typogra hical or other

formal errors, in order that corrections may be made before the pre-

liminary print goes to press.

SUPREME COURT OF THE UNITED STATES

No. 72-1395

United States, Petitioner, } On Writ of Certiorari to the

v. United States Court of Ap-

George J. Wilson, Jr. peals for the Third Circuit.

[February 25, 1975]

Mr. Justice MARSHALL delivered the opinion of the

Court.

-~-Resppndent George J. Wilson, Jr., was tried in the

Eastern District of Pennsylvania for converting union

funds to his own use, in violation of 29 U.S. C. § 501 (c).

The jury entered a guilty verdict, but on a postverdict

motion the District Court dismissed the indictment.

The court ruled that the delay between the offense and

the indictment had prejudiced the defendant, and that

dismissal was called for under this Court’s decision in

United States v. Marion, 404 U. S. 307 (1971). The

Government sought to appeal the dismissal to the Court

of Appeals for the Third Circuit, but that court held

that the Double Jeopardy Clause barred review of the

District Court’s ruling. 492 F. 2d 1345. We granted

certiorari to consider the applicability of the Double

Jeopardy Clause to appeals from postverdict rulings by

the trial court. 417 U. S. 908 (1974). We reverse.

I

In April 1968 the FBI began an investigation of

respondent Wilson, the business manager of Local 367 of

the International Brotherhood of Electrical Workers.

The investigation focused on Wilson’s suspected conver-

sion in 1966 of $1,233.15 of union funds to pay part of

2 UNITED STATES v. WILSON

the expenses of his daughter’s wedding reception. The

payment was apparently made by a check drawn on

union funds and endorsed by the treasurer and the presi-

dent of the local union. Respondent contended at trial

that he had not authorized the two union officials to

make the payment on his behalf and that he did not

know the bill for the reception had been paid out of

union funds. In June 1970 the FBI completed its inves-

tigation and reported to the Organized Crime Strike

Force and the local United States Attorney’s Office.’

There the matter rested for some 16 months until, three

days prior to the running of the statute of limitations,

respondent was indicted for illegal conversion of union

funds.

Wilson made a pretrial motion to dismiss the indict-

ment on the ground that the Government's delay in filing

the action had denied him the opportunity for a fair

trial. His chance to mount an effective defense was

impaired, Wilson argued, because the two union officers

who had signed the check for the reception were unavail-

able to testify. One had died in 1968, and the other was

suffering from a terminal illness. After a hearing, the

court denied the pretrial motion, and the case proceeded

to trial. The jury returned a verdict of guilty, after which

the defendant filed various motions including a motion

for arrest of judgment, a motion for a judgment of

acquittal, and a motion for a new trial.

The District Court reversed its earlier ruling and dis-

missed the indictment on the ground that the preindict-

ment delay was unreasonable and had substantially

1 The Court of Appeals noted that the portion of the investigation

that focused or Wilson was completed by June 1969. 492 F. 2d, at

1346. The FBI agent who conducted the investigation testified

that he had communicated with representatives of the Strike Force

and the U. S. Attorney’s Office about the case as early as December

1969. App. 28.

Se een

UNITED STATES v. WILSON 3

prejudiced the defendant’s right to a fair trial. The

union treasurer had died prior to 1970, the court noted,

so the loss of his testimony could not be attributed to

the preindictment delay. The union president, however,

had become unavailable during the period of delay. The

court ruled that since he was the only remaining witness

who could explain the circumstances of the payment of

the check, the preindictment delay violated the respond-

ent’s Fifth Amendment right to a fair trial. This dis-

position of the Marion claim made it unnecessary to rule

on the defendant’s other postverdict motions.

The Government sought to appeal the District Court’s

ruling pursuant to the Criminal Appeals Act, 18 U.S. C.

§ 3731, but the Court of Appeals dismissed the appeal in

a judgment order, citing our decision in United States v.

Sisson, 399 U. S. 267 (1970). On the Government’s -

petition for rehearing, the court wrote an opinion in

which it reasoned that since the District Court had relied

on facts brought out at trial in finding prejudice from

the preindictment delay, its ruling wac in effect an

acquittal. Under the Double Jeopardy Clause, the

Court of Appeals held, the Government could not con-

stitutionally appeal the acquittal, even though it was

rendered by the judge after the jury had returned a

verdict of guilty.

II

The Government argues that the Court of Appeals

read the Double Jeopardy Clause too broadly and that it

mischaracterized the District Court’s ruling in terming

it an acquittal. In the Government’s view, the consti-

tutional restriction on governmental appeals is intended

solely to protect against exposing the defendant to mul-

tiple trials, not to shield every determination favorable

to the defendant from appellate review. Since a new

trial would not be necessary where the trier of fact has

Bae) ook RN

4 UNITED STATES v. WILSON

returned a verdict of guilty, the Government argues that

it should be permitted to appeal from any adverse post-

verdict ruling. In the alternative, the Government urges

that even if the Double Jeopardy Clause is read to bar

appeal of any judgment of acquittal, the District Court’s

order in this case was not an acquittal and it should

therefore be appealable. The respondent argues that

under our prior cases the Double Jeopardy Clause pro-

hibits appeal of any order discharging the defendant

when, as here, that order is based on facts outside the

indictment. Because we agree with the Government

that the constitutional protection against Government

appeals attaches only where there is a danger of subject-

ing the defendant to a second trial for the same offense,

we have no occasion to determine whether the ruling in

Wilson’s favor was actually an “acquittal” even though

the District Court characteriza it otherwise.

A

This Court early held that the Government could not

take an appeal in a criminal case without express statu-

tory authority. United States v. Sanges, 144 U.S. 310

(1892). Not reaching the underlying constitutionaj is-

sue, the Court held only that the general appeals pro-

visions of the Judiciary Act of 1891, 26 Stat. 827, 828,

were not sufficiently explicit to overcome the common-law

rule that the State could not sue out a writ of error in a

criminal case unless the legislature had expressly granted

it that right. 144 U.S., at 318, 322-323.

Fifteen years later, Congress passed the first Criminal

Appeals Act, which conferred jurisdiction on this Court

to consider criminal appeals by the Government in lim-

ited circumstances. 34 Stat. 1246. The Act permitted

the Government to take an appeal from a decision dis-

missing an indictment or arresting judgment where the

UNITED STATES v. WILSON 5

decision was based on “the invalidity or construction of

the statute upon which the indictment is founded,” and

from a decision sustaining a special plea in bar, when the

defendant had not been put in jeopardy.* The Act was

construed in accordance with the common-law meaning of

the terms employed, and the rules governing the condi-

tions of. appeal become highly technical. This Court

had a number of occasions to struggle with the vagaries

of the Act; ‘ in one of the last of these unhappy efforts,

we concluded that the Act was “a failure . . . a most un-

ruly child that has not improved with age.” United

States v. Sisson, supra, 399 U. S., at 307.

‘Congress finally disposed of the statute in 1970 and

replaced it with a new Criminal Appeals Act intended to

broaden the Government’s appeal rights.’ While the

language of the new Act is not dispositive, the legislative

history makes it clear that Congress intended to remove

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2 Significantly, the statute expressly provided that the Government

could not have a writ of error “in any case where there has been a t

verdict in favor of the defendant.” The legislative history indicates is

that this provision was added to ensure that the statute would: not r

conflict with the principles of the Double Jeopardy Clause. See 41 ‘

Cong. Rec. 2749-2762, 2819. . ¥

3 The statute was amended several times, but the amendments did e

not render its construction any simpler. ‘ The most significant change ;

in the statute was the 1942 amendment, 56 Stat. 271, in which Con- f

gress provided that some dismissals should be reviewed in the h

courts of appeals and that the Supreme Court’s appellate jurisdic- y

tion should extend to prosecutions by information. In 1968, the

statute was further amended to authorize Government appeals from

pretrial rulings granting motions to suppress or to return seized a

property. 82 Stat. 237. | f

4 See, ¢. 9., Un&ed States v. Weller, 401 U.S. 254 (1971); United &

States v. Sisson, 399 U. 8. 267 (1970); United States vy. Mersky, 361 er.

U. 8. 431 (1960); United States v. Borden Co., 308 U. S. 188 (1939). ‘

5 The new statute, 18 U. 8. C. § 3731 (1970), was passed as Title é

III of the Omnibus Crime Control Act of 1970, Pub. L. 91-6+4, 84 ®

Stat., 1890. ; .

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6 UNITED STATES v. WILSON

all statutory barriers to Government appeals and to allow

appeals whenever the Constitution would permit.

A Bill proposed by the, Department of Justice would

have permitted an appeal by the United States “from a

decision, judgment or order of a district court dismissing

an indictment or information or terminating a prosecu-

tion in favor of a defendant as to any one or more counts,

except that nci appeal [would] lie from a judgment of

acquittal.” §. 3132; H. R. 14588. The Senate Report

on this Bill indicated that the Judiciasy Committee in-

tended to extend the Government’s appeal rights to the

constitutional limits. S. Rep. No. 91-1296, 91st Cong.,

2d Sess., 18 (1970). Both the Report and the wording

of the Bill, however, suggested that the Committee

thought the Double Jeopardy Clause would bar appeal

of any acquittal, whether a verdict of acquittal by a jury

or a judgment of acquittal entered by a judge. /d., at 2,

8-12. At the same titne, the Committee appears to have

thought that. the Constitution would permit review of any

other ruling by a judge that terminated a prosecution,

even if the ruling came in the midst of a trial. /d., at 11.

The Conference Committee made two important

changes in the Bill, although it offered no explanation for

_ them. H. R. Rep. No. 91-1768, 91st Cong., 2d Sess., 21

(1970). The Committee omitted the language purport-

ing to permit an appesl from an order “terminating a

prosecution in favor of a defendant,” apd it removed

the phrase that would have barred appeal of an acquittal.

In place of that provision, the Committee substituted

the language that was ultimately enacted, under which an

appeal was authorized “from a decision, judgment, or

order of a district court dismissing an indictment or in-

formation .. . except that no appeal shall lie where the

double jeopardy clause of the United States Constitution

forbids further prosecution.”

UNITED STATES v. WILSON 7

These changes are consistent with the Senate Commit-

tee’s desire to authorize appeals whenever constitutionally

permissibie, but they suggest that Congress decided to

rely upon the courts to define the constitutional bound-

aries rather than to create a statutory scheme that might

be in some respects narrower or broader than the Fifth

Amendment would allow. In light of this background

it seems inescavable that Congress was determined to

avoid creating nouceustitutional bars to the Govern-

ment’s right to appeal. The District Court’s order in

this case is therefore appealable unless tne appeal is

barred by the Constitution.

B

The statutory restrictions on Government appeals long

made it unnecessary for this Court to consider the con-

stitutional limitations on the appeal rights of the prosecu-

tion except in unusual circumstances. Ever in the few

relevant cases, the discussion of the question has been

brief. Now that Congress has removed the statutory

limitations and the Double Jeopardy Clause has been

held to apply to the States, see Benton v. Maryland, 395

U. S. 784 (1969), it is necessary to take a closer look at

the policies underlying the Clause in order to determine

more precisely the boundaries of the Government’s ap-

peal rights in criminal cases.

As has been documented elsewhere, the idea of double

jeopardy is Very old. See Bartkus v. Illinois, 359 U. S..

121, 151-155 (1959) (Black. J., dissenting) ; United States

vy. Jenkins, 490 F. 2d 868, 870-873 (CA2 1973). The

early development of the principle can be traced through

a variety of sources ranging from legal maxims to casual

references in contemporary commentary. Although the

form and breadth of the prohibition varied widely, the

underlying premise was generally that a defendant should -

not be twice tried or punished for the same offense. J.

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8 UNITED STATES v. WILSON

Sigler, Double Jeopardy 2-16 (1969).° Writing in the

Seventeenth Century, Lord Coke described the protec-

tion afforded by the principle of double jeopardy as a

function of three related common-law pleas: autrefois

acquit, autrefois convict, and pardon. With some excep-

tions, these pleas could be raised to bar the second trial

of a defendant if he could prove that he had already

been convicted of the same crime. 3 Coke, Institutes

of the Laws of England 212-213 (1669). Blackstone

later used the ancient term “jeopardy” in characteriz-

ing the principle underlying the two pleas of autrefovs

acquit and autrefois convict. That principle, he wrote,

was a “universal maxim of the common law of Eng-

land, .. . that no man is to be brought into jeopardy of

his life, more than once, for the same offense.” 4 W.

Blackstone, Commentaries *335-336.

The history of the adoption of the Double Jeopardy

Clause sheds some light on what the drafters thought

Blackstone’s “universal maxim” should mean as applied

in this country. At the time of the First Congress, only

one State had a constitutional provision embodying any-

thing resembling a prohibition against double jeopardy.’

In the course of their ratification proceedings, however,

two other States suggested that a Double Jeopardy Clause

be included among the first amendments to the Federal

¢ Expressions of the principle can be found in English law from

the time of the Year Books, and as early as the 15th century the

English courts had begun to use the term “jeopardy” in connect,on

with the principle against multiple trials. See Kirk, “Jeopargy”

During the Period of the Year Books, 82 U. Pa. L. Rev. 602 (1934).

7 Article I, § 16, of New Hampshire’s Constitution of 1784 read:

“No subject shall be tried, after an acquittal, for the same crime or

offence.” It contained no prohibition, however, against retrial after

conviction. 4 Thrope, The Federal and State Constitutions 2455

(1909).

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UNITED STATES v. WILSON 9

Constitution.® Apparently ‘attempting to accommodate '

these suggestions, James Madison added a ban against

double jeopardy to the proposed version of the Bill of

Rights that he presented to the House of Representatives

in June 1789. Madison’s provision read: “No person

shall be subject, except in cases of impeachment, to more

than one punishment or one trial for the same offense.”

1 Annals of Congress 434 (1789). Several members of

the House challenged Madison’s wording on the ground

that it might be misconstrued to prevent a defendant

from seeking a new trial on appeal of his conviction. /d.,

at 753. One of Madison’s supporters assured the doubt-

ers that the proposed clause merely stated the current

law, and that this protection for defendants was implicit

in the language as it stood.° Madison’s wording survived

in the House, but in the Senate, his proposal was re-

jected in favor of the more traditn nal language employ-

8 Among the suggested amendments that New York sent to the

Congress with its ratification declaration was one that read: “That

no person ought to be put twice in jeopardy of life or limb, for one

and the same offence; nor, unless in case of impeachment, be pun-

ished more than once for the same offence.” 1 Elliott’s Debates on

the Federal Constitution 328 (1876). This language borrowed

heavily from Blackstone’s formulation. Maryland also sent a pro-

posed version of the Double Jeopardy Clause, which read: “That...

there shall be no appeal from matter of fact, or second trial after

acquittal; but this provision shall not extend to such cases as may

arise in the government of the land or naval forces.” 2 Elliott’s

Debates, supra, at 550.

° From the brief report of the debate it appears that both sides agreed

that a defendant could have a second trial after a conviction, but the

Government could not have a new trial after an acquittal. Repre-

sentative Sherman commented, “If the [defendant] was acquitted

on the first trial, he ought not to be tried a second time; but if he

was convicted on the first, and anything should appear to set the

judgment aside, he was entitled to a second, which was certainly

favorable to him.” © 1 Annals of Congress 753 (1789).

10 UNITED STATES v. WILSON

ing the familiar concept of “jeopardy.” S. J., 1st Cong.,

Ist Sess., 71, 77 (1820 ed.) The Senate’s choice of lan-

guage that tracked Blackstone’s statement of the princi-

ples of autrefois acquit and autrefois convict was adopted

by the Conference Committee and approved by both

Houses with no apparent dissension. S. J., supra, 87-88;

H.R. J., lst Cong., Ist Sess., 121 (1826 ed.).

In the course of the debates over the Bill of Rights,

there was no suggestion that the Double Jeopardy Clause

imposed any general ban on appeals by the prosecution.

The only restriction on appeal rights mentioned in any

of the proposed versions of the Clause was in Maryland’s

suggestion that “there shall be no appeal from matter of

fact,’ which was apparently intended to apply equally

to the prosecution and the defense. Nor does the com-

mon-law background of the Clause suggest an implied

prohibition against state appeals. Although in the late

18th century the King was permitted to sue out a writ

of error in a criminal case under certain circumstances,”

the principles of autrefois acquit and autrefois convict

imposed no apparent restrictions on this right. It was

only when the defendant was indicted for a second time

after either a conviction or an acquittal that he could

seek the protection of the common-law pleas. The

development of the Double Jeopardy Clause from its

common-law origins thus suggests that it was directed at

the threat of multiple prosecutions, not at Government

apreals, at least where those appeals would not require

a new trial.

Cc

This Court’s cases construing the Double Jeopardy

© The prosecution’s appeal rights were generally limited to cases in

which the error appeared on the face of the record, or in which the

defendant had obtained his acquittal by fraud or treachery. See

Friedland, Double Jeopardy 287 (1969).

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UNITED STATES v. WILSON 11

Clause reinforce this view of the constitutional guar-

antee. In North Carolina v. Pearce, 395 U. 8. 71l

(1969), we observed that the Double Jeopardy Clause

provides three related protections:

“Tt protects against a second prosecution for the

same offense after acquittal. It protects against a

second prosecution for the same offense after con-

viction. And it protects against multiple punish-

ments for the same offense.” Jd., at 717.

The interests underlying these three protections are

quite similar. When a defendant has been once con-

victed and punished for a particular crime, principles of

fairness and finality require that he not be subjected to

the possibility of further punishment by being again

tried or sentenced for the same offense. Ex parte Lange,

18 Wall. (85 U. S.) 163 (1873); Jn re Nielsen, 131 U.S.

176 (1889). When a defendant has been acquitted of

an offense, the Clause guarantees that the State shall not

be permitted to make repeated attempts to convict him,

“thereby subjecting him to embarrassment, expense and

ordeal and compelling him to live in a continuing state

of anxiety and insecurity, as well as enhancing the possi-

bility that even though innocent he may be found guilty.”

Green v. United States, 355 U. S. 184, 187-188 (1957).

The policy of avoiding multiple trials has been regarded

as so important that exceptions to the principle have

been only grudgingly allowed. Initially, a new trial was

thought to be unavailable after appeal, whether requested

by the prosecution or the defendant. See United States

v. Gibert, 25 F. Cas. 1287 (No. 15,204) (C. C. D. Mass.

1834) (Story, J.). It was not until 1896 that it was

made clear that a defendant could seek a new trial after

conviction, even though the Government enjoyed no

similar right. United States v. Ball, 163 U. S. 662

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(1896)."" Following the same policy, the Court has

granted the Government the right to retry a defendant

after a mistrial only where “there is a manifest necessity

for the act, or the ends of public justice would otherwise

be defeated.” United States v. Perez, 9 Wheat. (22

U.S.) 579, 580 (1824).””

By contrast, where there is no threat of either multiple

punishment or successive prosecutions, the Double Jeop-

ardy Clause is not offended.’* In various situations

where appellate review would not subject the defendant

to a second trial, this Court has held that an order favor-

ing the defendant could constitutionally be appealed by

the Government. Since the 1907 Criminal Appeals Act,

for example, the Government has been permitted with-

out serious constitutional challenge to appeal from orders

arresting judgment after a verdict has been entered

against the defendant. See, e. g., United States v.

Bramblett, 348 U. S. 503 (1955) ; United States v. Green,

11 This exception to the “one trial” rule has been explained on

the conclusory theories that the defendant waives his double

jeopardy claim by appealing his convic? ion, or that the first jeopardy

continues until he is acquitted or his conviction becomes final, see

Green v. United States, supra, at 189. As Mr. Justice Harlan noted

in United States v. Tateo, 377 U. S. 463, 465-466 (1964), however,

the practical justification for the exception is simply that it is

fairer to both the defendant and the Government.

12—In Perez, the Court emphasized the limited scope of this ex-

ception by adding: “To be sure, the power [to declare a mistrial

and subject the defendant to retrial] ought to be used with the

greatest caution, under urgent circumstances, and for very plain

and obvious causes.” bid.

:3Qn a number of occasions, the Court has observed that the

Double Jeopardy Clause “prohibits merely punishing twice, or

attempting a second time to_punish criminally for the same offense.” ©

Helvering v. Mitchell, 303 U. S. 391, 399 (1938). See also One Lot

Emerald Cut Stones v. United States, 409 U.S. 232, 235-236 (1972) ;

Stroud v. United ‘States, 251 U.S. 15, 18 (1919); cf. United States

v. Jorn, 400 U. S. 470, 479 (1971).

’ UNITED STATES v. WILSON 13

350 U. S. 415 (1956); Pratt v. United States, 70 U. S.

App. D. C. 7, 11, 102 F. 2d 275, 279 (1939). Since reversal

on appeal would merely reinstate the jury’s verdict,

review of such an order does not offend the policy against

multiple prosecution. s

Similarly, it is well settled that an appellate court’s

order reversing a conviction is subject to further review

even when the appellate court has ordered the indict-

ment dismissed and the defendant discharged. Forman

v. United States, 361 U. S. 416, 426 (1960). If reversal

by a court of appeals operated to deprive the Govern-

ment of its right to seek further review, disposition in

the Court of Appeals would be “tantamount to a verdict

of acquittal at the hands of the jury, not subject to review

by motion for rehearing, appeal, or certiorari in this

Court.” Ibid. See also United States v. Shotwell Mfg. .

Co., 355 U. S. 233, 243 (1957).

It is difficult to see why the rule should be any different

simply because the defendant has gotten a favorable post-

verdict ruling of law from the District Judge rather than

from the Court of Appeals, or because the District Judge

has relied to some degree on evidence presented at trial

in making his ruling. Although review of any ruling of

law discharging a defendant obviously enhances the like-

lihood of conviction and subjects him to continuing

expense and anxiety, a defendant has no legitimate claim

to benefit from an error of law when that error could be

corrected without subjecting him to a second trial before

a second trier of fact.**

As we have noted, this Court has had relatively few

14 Judge Learned Hand took this position in United States v.

Zisblatt, 172 F. 2d 740, 743 (CA2), appeal dismissed on the Govern-

ment’s motion, 336 U. S. 934 (1949). “So long as the verdict of

guilty remains as a datum, the correction of errors of law in attach-

ing the proper legal consequences to it do not trench upon the

constitutional prohibition.”

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14 UNITED STATES v. WILSON

occasions to comment directly on the constitutional

restrictions on Government appeals. The few relevant

cases are nonetheless consistent with double jeopardy

cases from related areas, in focusing on the prohibition

against multiple trials as the eontroling constitutional

principle.

The Court first addressed the question in United States

v. Ball, supra. After trial on an indictment for murder,

the jury found one of the defendants not guilty. The

indictment was later determined to be defective, but this

Court held that an acquittal, even on a defective indict-

ment, was sufficient to bar a subsequent prosecution for

the same offense. 163 U. S., at 669. “The verdict of

acquittal was final,” the Court wrote, “and could not

be reviewed, on error or otherwise without putting him

twice in jeopardy, and thereby violating the Constitu-

tion.” Jd., at 671.

Nine years later the Court was again faced with a

double jeopardy challenge to a Government appeal.’

In Kepner v. United States, 195 U. 8S. 100 (1905). the

prosecution sought what was in essence a trial de novo

after the defendant had been acquitted by the court in

a bench trial. The Court, relying on the Ball case, held

that “to try a man after a verdict of acquittal is to put

him twice in jeopardy, although the. verdict was not

followed by judgment.” /d., at 133. Permitting an

appeal in Kepner would in effect have exposed the

defendant to a second irial, in violation of the constitu-

* The challenge in Kepner was based not on the Constitution.

but on a statutory provision that extended double jeopardy pro-

tection to the Philippines. While cases construing that statute do

not necessarily control the construction of the Double Jeopardy

Clause of the Fifth Amendment, see Green vy. United States. 355

U.S. 184, 197 (1957), we accept Kepner as having correctly stated

the relevant double jeopardy principles.

es RE SES Tyree

UNITED STATES v. WILSON 15

tional protection against multiple trials for the same

offense. ,

Respondent contends that Ball and Kepner stand for

the proposition that the key to invoking double jeopardy

protection is not whether the defendant might be sub-

jected to multiple trials, but whether he can point to a

prior verdict or judgment of acquittal. In Ball, how-

ever, the Court explained that review of the verdict of

acquittal was barred primarily because it would expose

the defendant to the risk of a second trial after the

finder of fact had ruled in his favor in the first. And,

although the Kepner case technically involved only a

single proceeding, the Court regarded the practice as

equivalent to two separate trials, and the evil that the

Court saw in the procedure was plainly that of multiple

prosecution: 7°

“The court of first instance, having jurisdiction to

try the question of the guilt or innocence of the

accused, found Kepner not guilty; to try him again

upon the merits, even in an appellate court, is to

put him a second time in jeopardy for the same

offense.” Ibid.

The respondent seeks some comfort from this Court’s

more recent decision in Fong Foo v. United States, 369

U. S. 141 (1962), but that case. too, reflects the policy

against multiple trials in limiting the Government’s

appeal rights. In Fong Foo the trial court had inter-

rupted the Government’s case and directed the jury to

return verdicts of acquittal as to all the defendants. This

6 Although Kepner technically involved only one proceeding, the

Court regarded the second factfinding as the equivalent of a second

trial. In subsequent cases, this Court has treated the Kepner

principle as being addressed to the evil of successive trials, see

Stroud v. United States, 251 U.S. 15, 18 (1919); Palko v. Connecti-

cut, 302 U. 8. 319, 322-323 (1937).

SEP LLL RIME EIEES

16 UNITED STATES v. WILSON

Court held that even if the District Court had erred in

directing the acquittal, the Double Jeopardy Clause was

offended “when the Court of Appeals set aside the judg-

ment of acquittal and directed that the petitioners be

tried again for the same offense.” 369 U.S., at 143.

The Court noted that although retrial is sometimes per-

missible after a mistrial is declared but no verdict or

judgment has been entered, the verdict of acquittal fore-

closed retrial and thus barred appellate review.

Finally, respondent places great weight on our decision

in United States v. Sisson, 399 U. S. 267 (1970). He

‘claims that Sisson extends the constitutional protection

against Government appeals to any case in which the

-uling appealed from is based upon facts outside the face

of the indictment.

Sisson arose under the former Criminal Appeals Act

and came here on direct appeal from the District Court.

The defendant had been tried for refusing to submit to

induction, and the jury had found him guilty. On a

postverdict motion, however, the District Court entered

what it termed an “arrest of judgment,” dismissing the

indictment on the ground that Sisson could not be con-

victed because his sincere opposition to the war in Viet-

nam outweighed the country’s need to draft him. The

Government sought to appeal the District, Court’s ruling

on the theory that it was within the “arresting judgment”

provision of the Criminal Appeals Act. We held that the

ruling was not appealable under either the “arresting

judgment” or the “motion in bar” provisions of the Act

and dismissed the case for want of appellate jurisdiction.

Writing for a plurality of four Justices, Mr. Just*ce

Harlan gave three reasons for his*conclusion that the

District Court’s ruling was not appealable as an arrest

of judgment. . First, he wrote, the District Court’s ruling

was not within the common-law definition of an arrest of

judgment since it went beyond the face of the record.

UNITED STATES v. WILSON 17

The Criminal Appeals Act, he noted, was drafted against

a common-law background in which the statutory phrase

had a “well defined and limited meaning” that did not

incorporate rulings that re#éd upon evidence introduced

at trial. Seveond, the District Court’s ruling failed to sat-

isfy the statutory requirement that the decision arresting

judgment be “for insufficiency of the indictment.” The

issue of the sincerity of Sisson’s beliefs was not presented

by the indictment; accordingly, the indictment was not

‘Gnsufficient” under the appeals statuge, sinee it was suffi-

cient to charge an offense and it did not allege facts that

in themselves established the availability of a constitu-

tional privilege. In Part II-C of the opinion, for which

Mr. Justice Black provided a majority of the Court, Jus-

tice Harlan explained the third reason for concluding that

the District Court’s order was not an arrest of judgment:

because the order was “bottomed on factual conclusions

not found in the indictment but instead made on the

basis of evidence adduced at the trial,” it was an acquittal

“rendered by the trial court after the jury’s verdict of

guilty.” 399 U. S., at 288, The District Court’s post-

verdict ruling, he wrote, was indistinguishable from a

hypothetical verdict of acquittal entered by a jury on an

instruction incorporating the constitutional defense that

the judge had recognized in his ruling. If the jury had

been so instructed and had acquitted, he pointed out,

there would plainly have been no appeal under the Crim-

inal Appeals Act. The legislative history of the Act

made it clear that Congress did not contemplate review

of verdicts of acquittal, no matter how «rroneous the

constitutional theory underlying the instructions. Nor,

he added, could an appeal have been taken consistently

with the Double Jeopardy Clause. The latter point was

made in the following passage:

“Quite apart from the statute, it is, of course, well

settled that an acquittal can ‘not be reviewed on

18 UNITED STATES v. WILSON

| error or otherwise, without putting [the defendant]

twice in jeopardy, and thereby violating the Consti-

tution.... [I]n this country a verdict of acquittal,

although not followed by any judgment, is a bar

to a subsequent prosecution for the same offense.’

United States v. Ball, 163 U.,S. 662, 671 (1896).”

399 U.S., at 289-290.

Respondent. argues that this passage was meant to

provide an alternative holding for Sisson, that even if

the Criminal Appeals Act would permit an appeal on the

facts in Sisson, the Double Jeopardy Clause would not.

In essence, respondent rests his case on what he perceives

to be the Court’s syllogism in this portion of the Sisson

opinion: (1) the postverdict ruling was not a common-.

law arrest of judgment, but an acquittal; (2) under the

Ball case, an acquittal cannot be appealed without of-

fending the Double Jeopardy Clause; thus, (3) the Dis-

trict Court’s ruling in Sisson was shielded from review

as a matter of constitutional law.

We are constrained to disagree. A more naiural read-

ing of this passage suggests that the reference to the

Double Jeopardy Clause was meant to apply to the hypo-

thetical jury verdict, not to the order entered by the

trial court in Sisson itself..7 Appeal from the hypothet-

17 Under respondent’s interpretation of the passage, the reliance

on Ball is difficult to explain. The rationale of the Ball case, and

particularly the portion quoted in Sisson, turns on the fact that an

appeal might result in a second trial, which would not have been

necessary in Sisson. On the narrower reading of the passage, the

reference to Ball is precisely in point; the verdict of the hypothetical

jury would be unappealable for the very reason stated in the quota-

tion from the Ball case.

In addition, respondent’s proposed reading of the passage would

constitutionalize the very common-law distinctions that the Sisson

Court anticipated an amended Criminal Appeals Act would eliminate.

If no postverdict order except a common-law arrest of judgment is

constitutionally appealable, this Court and the courts of appeals

eT Ress EGET S <a MA acl ERLE E LL LORE SL LLL L IE ALOE DIL PDAS

a ke ee

UNITED STATES v. WILSON 19

ical jury verdict would have been precluded both by the

statute and by the Constitution; appeal from the District

Court’s actual ruling in the case, however, was barred

solely by the statute. The only direct effect of the Con-

stitution on the case was, as the Court pointed out in a

footnote following the quoted passage, that after this

Court’s jurisdictional dismissal, Sisson could not be re-

tried. 399 U..S., at 290 n. 18.% Accordingly, we find

Sisson no authority for the proposition that the Govern-

‘ment cannot constitutionally appeal any postverdict order

that would: have been an unappealable acquittal under

the former Criminal Appeals Act.

‘D

The Government has not seriously contended in this

case that aiy ruling of law by a judge in the course of

a trial is reviewable on the State’s motion,’ although

this view has had some support among the commentators

since Mr. Justice Holmes adopted it in his dissent to

Kepner v. United States, supra.” Justice Holmes

would continue to.be plagued with the “limitations imposed by [the] |

awkward and ancient [Criminal Appeals] Act, 399 U. S., at 308.

Worse still, the unhappy task of exploring pleading distinctions that

existed at common law would now be imposed on the States, see

Benton v. Maryland, 395 U. S. 784 (1969). :

18 Qn any view, Sisson would have been a singularly inappropriate

case in which to decide the constitutional point. The constitutional

question was not raised or briefed by the parties, and resolution of

the issue in the manner respondent suggests would have markéd a

significant development in double jeopardy law, deserving of plenary

treatment.

19 The Government has advanced this argument, if rather cauti-

ously, in its brief in a companion case, United States v. Jenkins,

No. 73-1513, upon which it has relied in this case. See Brief for

Petitioner in United States v. Jenkins, No. 73-1513, at 24-25, n. 16.

20 See, e. g., Mayers & Yarbrough, Bis Vexari: New Trials and

Successive Prosecutions, 74 Harv. L. Rev. 1, 8-15 (1960): Miller,

Appeals by the State in Criminal Cases, 36 Yale L. J. 486 (1927).

20 UNITED STATES v. WILSON

accepted as common ground that the Double Jeopardy

‘Clause forbids “a trial in a new and independent case

where a man already has been tried once.” 195 U. &.,

at 134. But in his view the first jeopardy should be

treated as continuing until both sides have exhausted

their appeals on claimed errors of law, regardless of the

possibility that the defendant may be subjected to retrial

after a verdict of acquittal.

A system pefmitting review of all claimed legal errors

would have symmetry to recommend it and would avoid

the release of some defendants who have benefited from

instructions or evidentiary rulings that are unduly favor-

able to them. But we have rejected this position in the

past, and we continue to be of the view that the policies

underlying the Double Jeopardy Clause militate against

permitting the Government to appeal aft: a verdict of

acquittal. Granting the Government such broad appeal

rights would allow the prosecutor to seek to persuade

_a second trier of fact of the defendant’s guilt after having

failed with the first; it would permit him to re-examine

e

; the weaknesses in his first presentation in order to

‘ strengthen it in thie second; and it would disserve the

s defendant’s legitimate interest in the finality of a verdict

of acquittal." These interests, however, do not apply

in the case of a postverdict ruling of law by a trial judge.

Correction of an error of law at that stage would not

grant the prosecutor a new trial or subject the defendant

to the harassment traditionally associated with multiple

prosecutions. We therefore conclude that when a judge

rules in favor of the defendant after a verdict of guilty

has been entered by the trier of fact, the Government

21 See Ashe v. Swenson, 397 U. S. 436, 446-447 (1970) ; id., at 455

n. 11, 459 (BRENNAN, J., concurring) ; Green v. United States, supra,

355 U. S., at 187; Comment, Double Jeopardy and Government

Appeals of Criminal Dismissals, 52 Tex. L. Rev. 303, 340-342 (1974).

SiR ELIE PINS AE LILLIE EI SII OO OI rad

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4

UNITED STATES v. WILSON 21

may appeal from that ruling without running afoul of

the Double Jeopardy Clause.

III

Applying these principles to the present case is a rela-

tively straightforward task. The jury entered a verdict

of guilty against Wilson. The ruling in his favor on the

Marion motion could be acted on by the Court of Ap-

peals or indeed this Court without subjecting him to a

second trial at the Government’s behest. If he pre-

vails on appeal, the matter will become final, and the

Government will not be permitted to bring a second

prosecution against him for the same offense. If he loses,

the case must go back to the District Court for disposition

of his remaining motions. We therefore reverse the

judgment and remand for the Court of Appeals to con-

sider the merits of the Government’s appeal.

Reversed and remanded.

on

SUPREME COURT OF THE UNITED STATES

No. 73-1395

United States, Petitioner,) On Writ of Certiorari to the

v. United States Court of Ap-

George J. Wilson, Jr. peals for the Third Circuit.

[February 25, 1975]

Mr. Justice Dovetas, with whom Mr. Justice BREN-

NAN joins, dissenting.

Respondent Wilson was indicted for converting to his

own use funds of Local 367, IBEW, which he served as

business manager and financial secretary. The theory of

the prosecution was that respondent had caused union

funds to be expended’ for his daughter’s wedding re-

ception. It was undisputed that a check drawn on

the union and signed by two union officers, Brinker

and Schaefer, had been forwarded to the hotel where the

wedding reception had been held, and that the hotel had

applied the payment in satisfaction of debts incurred on

account of the reception.

The funds were paid in November 1966. An indict-

ment was returned in October 1971, three days prior to

the running of the statute of limitations. By that time,

neither of the two signatories to the union check were

available to. testify in the case. Brinker had died in

1968; Schaefer was terminally ill. Respondent filed a

pretrial motion to dismiss the indictment on the ground

‘that preindictment delay violated the Due’ Process

Clause of the Fifth Amendment. See United States v.

Marion, 404 U. S. 307. Specifically, respondent argued

that the unavailability of the two signatories, caused by

preindictment delay, prejudiced his defense. After two

pretrial hearings, the District Court denied the motion.

At the trial, it was established that the local’s attorney,

, Rhee RASA SERNA Se ARNO a TPA

2 UNITED STATES v. WILSON

one Burke, had made a $1,000 deposit at the hotel where

the wedding reception was held, to cover expenses. A

bill for the balance had been mailed by the hotel to

respondent’s home address. Five months later the check

signed by Brinker and Schaefer had arrived. The testi-

mony established that the usual procedure for issuance

of a check was the completion of a voucher signed by

local president Schaefer and the recording secretary, thus

signifying approval of the expenditure, preparation of a

check by a secretary, and signature by the local president

and treasurer. It was established that respondent had

first given Brinker and Schaefer their office positions,

though they had been elected to the offices they held in

the union.

Respondent testified that he had never directed any-

one to issue the check in question and that he had reim-

_bursed Burke personally for the $1,000 deposit. He did

acknowledge, however, that Burke had told him in

November 1966, shortly after the pegment reached the

‘ hotel, that the bill had been paid.

At the close of evidence respondent renewed his motion

to dismiss on account of preindictment delay. The

judge withheld decision until receiving the verdict.

The jury found respondent guilty. The District Court

then ruled on respondent’s motion. It found that the

Government had unreasonably delayed the indictment

16 months after completion of an FBI investigation in

1970. The. court found that the delay caused the

union president Schaefer to be unavailable as a trial

witness. (Brinker had died in 1968, while the Govern-—

ment’s investigation was in progress.) Since, in the ~

court’s view, the presence of Schaefer, the signer of the

check and voucher, would have added “testimony of the

utmost importance to the trial,” the court. ruled that

respondent had been substantially prejudiced by the

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UNITED STATES v. WILSON 3

delay that deprived the trial of Schaefer’s . testimony.

Accordingly, the court dismissed the indictment.

The Government sought to appeal, arguing that the

dismissal had been erroneous. The Court of Appeals

held that appeal by the Government violated the Double

Jeopardy Clause.

In United States v. Sisson, 399 U. S. 267, facts de-

veloped in the trial of Sisson led a jury to convict him.

But after the jury verdict the District Court rendered a

post-verdict opinion called “an arrest of judgment” which

this Court called “a post-verdict directed acquittal,” 7d.,

at 290. which was described as “a legal determination on

the basis of facts addressed at the trial relating to the

general issue of the case.” id., at 290 n. 19, a reading re-

acta enn en

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affirmed in United States v. Jorn, 400 U. 8. 470, 478, n. 7.

In the present case the District Court reviewed the ;

evidence given at the trial and concluded that the re- :

spondent had been prejudiced because of testimony the ‘

missing witness (terminally ill) probably would have 5

added. What was asked on appeal was that the appellate :

judges review independently the evidence at the trial ‘

bearing on guilt and reach a different conclusion. In Ball :

vy. United States, 163 U. S. 662, 671, the Court said in dicta f

that have had a continuing impact on the law: “The ver-

dict of acquittal was final. and could not be reviewed, on :

error or otherwise, without putting him twice in jeopardy, :

and thereby violating the Constitution.” E

In Kepner vy. United States, 195 U. S. 100, the defend- 4

ant was acquitted of an embezzling charge following a

nonjury trial in a court of the Philippines. The Govern- ft

ment took an appeal to the Supreme Court of the Philip- E

pines, which independently reviewed the record and found P

Kepner guilty. This Court reversed, holding that the 3

Double Jeopardy Clause barred the entry of conviction :

4

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JOT Neto GEO SMeNman Seta

4 , UNITED STATES v. WILSON

by the appellate court.* The Court considered appellate

review by the Philippine Supreme Court to be equivalent

to the second trial in Ball. The Court accordingly held:

“Tt is then the settled law of this court that former

jeopardy includes one who has been acquitted by a

verdict duly rendered, . . . The protection is not...

against the peril of second punishment but against

being tried again for the same offense.” 195 U.S.,

at 130. .

Fong Foo v. United States, 369 U. S. 141, involved a

trial not completed but promising to be “long and compli-

cated,” where the trial judge directed a verdict for the

defendants on the ground of prosecutorial improprieties

and lack of credibility of Government witnesses. The

Court of Appeals had held that the trial judge had no

power to direct an acquittal on the record before it. This

Court reversed, though the Court of Appeals “thought,

not without reason, that the acquittal was based on an

egregiously erroneous foundation,” id., at 143. The rul-

ing of Ball, quoted above, was deemed controlling. Ibid.

In the present case, as in Fong Foo, the ruling of the

trial court is based in part on the evidence adduced at

the trial and in part on other related issues. Thus the

issue of a speedy trial in the present case is not review-

able, for it is part and parcel of the process of weighing

the Government’s evidentiary case against respondent.

Therefore we should affirm the judgment below.

*Technically, the Court was construing not the Double Jeopardy

Clause, but a statute passed by Congress for administration of the

Philippines that contained identical language. But the Court treated

the question as a constitutional one, finding the above-quoted dicta

from Ball as controlling.

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