Petitioners were brought to trial under a valid indictment in a
Federal District Court which had jurisdiction over them and over
the subject matter. After the Government had introduced part, but
not all, of its evidence, the District Judge directed the jury to
return verdicts of acquittal, and a formal judgment of acquittal
was entered. The Government petitioned the Court of Appeals for a
writ of mandamus, praying that the judgment of acquittal be vacated
and the case reassigned for trial. The Court of Appeals granted the
petition on the ground that, under the circumstances revealed by
the record, the District Court was without power to direct the
judgment of acquittal.
the judgment of the Court of Appeals was contrary
to the guaranty of the Fifth Amendment against double jeopardy. Pp.
369 U. S.
286 F.2d 556, reversed.
The petitioners, a corporation and two of its employees, were
brought to trial before a jury in a federal district court upon an
indictment charging a conspiracy and the substantive offense of
concealing material facts in a matter within the jurisdiction of an
agency of the United States, in violation of 18 U.S.C. §§ 371 and
1001. After seven
Page 369 U. S. 142
days of what promised to be a long and complicated trial, three
government witnesses had appeared and a fourth was in the process
of testifying. At that point, the district judge directed the jury
to return verdicts of acquittal as to all the defendants, and a
formal judgment of acquittal was subsequently entered.
The record shows that the district judge's action was based upon
one or both of two grounds: supposed improper conduct on the part
of the Assistant United States Attorney who was prosecuting the
case, and a supposed lack of credibility in the testimony of the
witnesses for the prosecution who had testified up to that
The Government filed a petition for a writ of mandamus in the
Court of Appeals for the First Circuit, praying that the judgment
of acquittal be vacated and the case reassigned for trial. The
court granted the petition, upon the ground that, under the
circumstances revealed by the record, the trial court was without
power to direct the judgment in question. Judge Aldrich concurred
separately, finding that the directed judgment of acquittal had
been based solely on the supposed improper conduct of the
prosecutor, and agreeing with his colleagues that the district
judge was without power to direct an acquittal on that ground. 286
F.2d 556. We granted certiorari to consider a question of
importance in the administration of justice in the federal courts.
366 U.S. 959.
In holding that the District Court was without power to direct
acquittals under the circumstances disclosed by the record, the
Court of Appeals relied primarily upon two decisions of this Court,
Ex parte United States, 242 U. S. 27
Ex parte United States, 287 U. S. 241
the first of these cases, it was held that a district judge had no
power to suspend a mandatory prison sentence, and that a writ of
mandamus would lie to require the judge to vacate his erroneous
order of suspension. In the second case, the Court issued a writ of
mandamus ordering a district
Page 369 U. S. 143
judge to issue a bench warrant, which he had refused to do, in
the purported exercise of his discretion, for a person under an
indictment returned by a properly constituted grand jury.
Neither of those decisions involved the guaranty of the Fifth
Amendment that no person shall "be subject for the same offense to
be twice put in jeopardy of life or limb." That constitutional
provision is at the very root of the present case, and we cannot
but conclude that the guaranty was violated when the Court of
Appeals set aside the judgment of acquittal and directed that the
petitioners be tried again for the same offense.
The petitioners were tried under a valid indictment in a federal
court which had jurisdiction over them and over the subject matter.
The trial did not terminate prior to the entry of judgment, as in
Gori v. United States, 367 U. S. 364
terminated with the entry of a final judgment of acquittal as to
each petitioner. The Court of Appeals thought, not without reason,
that the acquittal was based upon an egregiously erroneous
"[t]he verdict of acquittal was final, and could not be reviewed
. . . without putting [the petitioners] twice in jeopardy, and
thereby violating the constitution."
United States v. Ball, 163 U.
, 163 U. S.
MR. JUSTICE WHITTAKER took no part in the consideration or
decision of these cases.
* Together with No. 65, Standard Coil Products Co., Inc. v.
also on certiorari to the same Court.
MR. JUSTICE HARLAN, concurring.
Were I able to find, as Judge Aldrich did, that the District
Court's judgment of acquittal was based solely on the Assistant
United States Attorney's alleged misconduct, I would think that a
retrial of the petitioners would not be prevented by the Double
Jeopardy Clause of the
Page 369 U. S. 144
Fifth Amendment. Even assuming that a trial court may have
power, in extreme circumstances, to direct a judgment of acquittal,
instead of declaring a mistrial, because of a prosecutor's
misconduct -- a proposition which I seriously doubt -- I do not
think that such power existed in the circumstances of this case.
But since an examination of the record leaves me unable, as it did
the majority of the Court of Appeals, to attribute the action of
the District Court to this factor alone, I concur in the judgment
MR. JUSTICE CLARK, dissenting.
The Court speaks with such expanse that I am obliged to dissent.
It says that, because "a final judgment of acquittal" was entered
pursuant to a directed verdict, the propriety of such "acquittal"
cannot be reviewed even though the Government had not concluded its
main case at the time the verdict was directed. The District Court,
under the circumstances here, clearly had no power to direct a
verdict of acquittal or to enter a judgment thereon. In my view,
when a trial court has no power to direct such a verdict, the
judgment based thereon is a nullity. The word "acquittal" in this
context is no magic "open sesame" freeing, in this case, two
persons and absolving a corporation from serious grand jury charges
of fraud upon the Government.
On the record before us, it matters not whether the so-called
acquittal was pursuant to the trial court's conclusion that the
Government's witnesses up to that point lacked credibility, or was
based on the alleged misconduct of the prosecution.
On the first point, the Government had only examined three of
its witnesses, and was in the process of examining a fourth when
the acquittal was entered. The first and third witnesses were
merely preliminary, offered to identify
Page 369 U. S. 145
documents and explain the functions performed by the individual
defendants for the corporate defendant. The second was offered to
give the jury an explanation of radiosondes, devices for gathering
whether data, which petitioners were furnishing the Government
under contracts totaling several million dollars. It was during the
latter's testimony -- entirely explanatory -- that the court called
a recess for the stated purpose of requiring the United States
Attorney to "consider whether the public interest is served by a
further prosecution of this case." Upon the vigorous insistence of
the United States Attorney himself, the trial was resumed and the
Government called its third and fourth witnesses. The fourth
witness was the first to testify as to the fraud upon the
Government, which related to a deliberate scheme to conceal from
government inspectors defects in the devices. During direct
examination, the fourth witness was "not sure" as to the date of a
certain conference at which representatives of the corporate
defendant were present. Thereafter, at a recess period, his memory
was refreshed during a conversation with one of the Assistant
United States Attorneys. Upon resuming the stand, he corrected his
previous testimony as to the date, placing it a few months earlier.
On cross-examination, he admitted that the error had been called to
his attention by the Assistant. The court then excused the jury,
and, after excoriating the Assistant, called the jury back into
session and directed the verdict of acquittal.
It is fundamental in our criminal jurisprudence that the public
has a right to have a person who stands legally indicted by a grand
jury publicly tried on the charge. No judge has the power, before
hearing the testimony proffered by the Government, or at least
canvassing the same, to enter a judgment of acquittal, and thus
frustrate the Government in the performance of its duty to
prosecute those who violate its law.
Page 369 U. S. 146
Here, as the United States Attorney advised the court, only
three witnesses of the "many . . . to be heard from . . . " had
testified. The court had only begun to hear what promised to be a
protracted conspiracy case involving many witnesses. The Government
had not rested. As the majority of the Court of Appeals observed,
the District Court:
"abruptly terminated the Government's case . . . long before the
Government had had an opportunity to show whether or not it had a
case; and, moreover, he did so in ignorance of either the exact
nature or the cogency of the specific evidence of guilt which
Government's counsel said he had available and was ready to
286 F.2d at 562-563. At such a stage of the case, the District
Court had no power to prejudge the Government's proof -- find it
insufficient or unconvincing -- and set the petitioners free.
On the second point, even if there were misconduct, the court
still had no power to punish the Government because of the
indiscretion of its lawyer. As this Court said in McGuire v.
United States, 273 U. S. 95
273 U. S. 99
"A criminal prosecution is more than a game in which the
government may be checkmated and the game lost merely because its
officers have not played according to rule."
At most, if there had been misconduct, the remedy would have
been to declare a mistrial and impose appropriate punishment upon
the Assistant United States Attorney, rather than upon the public.
In my view, the judgment of the Court of Appeals should, therefore,