The jury entered a guilty verdict against respondent for a
federal offense, but on one of respondent's post-verdict 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 Government'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.
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. 420 U. S.
(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 post-verdict correction of an error of law which
would not grant the prosecution a new trial or subject the
defendant to multiple prosecutions. Pp. 420 U. S.
(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. 420 U. S.
492 F.2d 1345, reversed and remanded.
MARSHALL, J., delivered the opinion of the Court, in which
BURGER, C.J., and STEWART, WHITE, BLACKMUN, POWELL, and REHNQUIST,
JJ., joined. DOUGLAS, J., filed a dissenting opinion in which
BRENNAN, J., joined, post,
p. 420 U. S.
Page 420 U. S. 333
MR. JUSTICE MARSHALL delivered the opinion of the Court.
Respondent George J. Wilson, Jr., was tried in the Eastern
District of Pennsylvania for converting union funds to his own use
in violation of § 501(c) of the Labor-Management Reporting and
Disclosure Act of 1959, 73 Stat. 536, 29 U.S.C. § 501(c). The jury
entered a guilty verdict, but, on a post-verdict 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.
(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 (1973). We granted
certiorari to consider the applicability of the Double Jeopardy
Clause to appeals from post-verdict rulings by the trial court. 417
U.S. 908 (1974). We reverse.
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 conversion in 1966 of $1,233.15 of union funds
to pay part of 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 president
Page 420 U. S. 334
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
investigation and reported to the Organized Crime Strike Force and
the local United States Attorney's Office. [Footnote 1
] There the matter rested for some 16 months
until, three days prior to the running of the statute of
limitations, respondent was indicated for illegal conversion of
Wilson made a pretrial motion to dismiss the indictment 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
unavailable 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
The District Court reversed its earlier ruling and dismissed the
indictment on the ground that the pre-indictment delay was
unreasonable and had substantially 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
Page 420 U. S. 335
the pre-indictment 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 pre-indictment delay
violated the respondent's Fifth Amendment right to a fair trial.
This disposition of the Marion
claim made it unnecessary
to rule on the defendant's other post-verdict 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.
(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 pre-indictment delay, its ruling was,
in effect, an acquittal. Under the Double Jeopardy Clause, the
Court of Appeals held, the Government could not constitutionally
appeal the acquittal, even though it was rendered by the judge
after the jury had returned a verdict of guilty.
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 constitutional restriction on governmental
appeals is intended solely to protect against exposing the
defendant to multiple 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 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
Page 420 U. S. 336
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 prohibits 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 subjecting 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 characterized it otherwise.
This Court early held that the Government could not take an
appeal in a criminal case without express statutory authority.
United states v. Sanges, 144 U. S. 310
(1892). Not reaching the underlying constitutional issue, the Court
held only that the general appeals provisions 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 144 U. S. 318
144 U. S.
Fifteen years later, Congress passed the first Criminal Appeals
Act, which conferred jurisdiction on this Court to consider
criminal appeals by the Government in limited circumstances. 34
Stat. 1246. The Act permitted the Government to take an appeal from
a decision dismissing an indictment or arresting judgment where the
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
Page 420 U. S. 337
defendant had not been put in jeopardy. [Footnote 2
] The Act was construed in accordance with
the common law meaning of the terms employed, and the rules
governing the conditions of appeal became 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 unruly child that has not improved with age."
United States v. Sisson,
399 U.S. at 399 U. S.
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. [Footnote 5
] While the language of the new Act is not
dispositive, the legislative history makes it clear that Congress
intended to remove all statutory barriers to Government appeals,
and to allow appeals whenever the Constitution would permit.
Page 420 U. S. 338
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
prosecution in favor of a defendant as to any one or more counts,
except that no appeal [would] lie from a judgment of
S. 3132; H.R. 14588. The Senate Report on this bill indicated
that the Judiciary Committee intended to extend the Government's
appeal rights to the constitutional limits. S.Rep. No. 91-1296, p.
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.
at 2, 8-12. At the same time, 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. Id.
The Conference Committee made two important changes in the bill,
although it offered no explanation for them. H.R.Conf.Rep. No.
91-1768, p. 21 (1970). The Committee omitted the language
purporting to permit an appeal from an order "terminating a
prosecution in favor of a defendant," and 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 information . . . except that no appeal
shall lie where the double jeopardy clause of the United States
Constitution prohibits further prosecution."
These changes are consistent with the Senate Committee's desire
to authorize appeals whenever constitutionally
Page 420 U. S. 339
permissible, but they suggest that Congress decided to rely upon
the courts to define the constitutional boundaries, 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 inescapable that Congress was determined to
avoid creating nonconstitutional bars to the Government's right to
appeal. The District Court's order in this case is therefore
appealable unless the appeal is barred by the Constitution.
The statutory restrictions on Government appeals long made it
unnecessary for this Court to consider the constitutional
limitations on the appeal rights of the prosecution except in
unusual circumstances. Even 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 appeal rights in criminal cases.
As has been documented elsewhere, the idea of double jeopardy is
very old. See Bartkus v. Illinois, 359 U.
, 359 U. S.
-155 (1959) (Black, J., dissenting); United
States v. 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
Page 420 U. S. 340
J. Sigler, Double Jeopardy 2-16 (1969). [Footnote 6
] Writing in the 17th century, Lord Coke
described the protection afforded by the principle of double
jeopardy as a function of three related common law pleas:
autrefois acquit, autrefois convict,
and pardon. With some
exceptions, 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 E. Coke, Institutes 212-213 (6th ed. 1680).
Blackstone later used the ancient term "jeopardy" in characterizing
the principle underlying the two pleas of autrefois acquit
and autrefois convict.
That principle, he wrote, was a
"universal maxim of the common law of England that no man is to be
brought into jeopardy of his life more than once for the same
offence." 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 anything resembling a prohibition against double
jeopardy. [Footnote 7
] 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 Constitution. [Footnote 8
] Apparently attempting to accommodate
Page 420 U. S. 341
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
offence." 1 Annals of Cong. 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. Id.
at 753. One of Madison's
supporters assured the doubters that the proposed clause merely
stated the current law, and that this protection for defendants was
implicit in the language as it stood. [Footnote 9
] Madison's wording survived in the House, but
in the Senate, his proposal was rejected in favor of the more
traditional language employing the familiar concept of "jeopardy."
S.Jour., 1st Cong., 1st Sess., 71, 77 (1820 ed.). The Senate's
choice of language that tracked Blackstone's statement of the
Page 420 U. S. 342
principles of autrefois acquit
was adopted by the Conference Committee and approved
by both Houses with no apparent dissension. Id.
H.R.Jour., 1st Cong., 1st 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 common 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
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 appeals, at least where
those appeals would not require a new trial.
This Court's cases construing the Double Jeopardy Clause
reinforce this view of the constitutional guarantee. In North
Carolina v. Pearce, 395 U. S. 711
Page 420 U. S. 343
(1969), we observed that the Double Jeopardy Clause provides
three related protections:
"It protects against a second prosecution for the same offense
after acquittal. It protects against a second prosecution for the
same offense after conviction. And it protects against multiple
punishments for the same offense."
at 395 U. S.
The interests underlying these three protections are quite
similar. When a defendant has been once convicted 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.
18 Wall 163 (1874); In 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 possibility that, even though
innocent, he may be found guilty."
Green v. United States, 355 U.
, 355 U. S.
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) (CCD 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.
Page 420 U. S. 344
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.
9 Wheat. 579, 22 U. S. 580
(1824). [Footnote 12
By contrast, where there is no threat of either multiple
punishment or successive prosecutions, the Double Jeopardy Clause
is not offended. [Footnote
] In various situations where appellate review would not
subject the defendant to a second trial, this Court has held that
an order favoring the defendant could constitutionally be appealed
by the Government. Since the 1907 Criminal Appeals Act, for
example, the Government has been permitted, without 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.
(1955); United States v. Green,
350 U. S. 415
(1956); Pratt v. United States,
70 App.D.C. 7, 11, 102
F.2d 275, 279 (1939). Since reversal
Page 420 U. S. 345
on appeal would merely reinstate the jury's verdict, review of
such an order does not offend the policy against multiple
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 indictment dismissed and the
defendant discharged. Forman v. United States,
361 U. S. 416
361 U. S. 426
(1960). If reversal by a court of appeals operated to deprive the
Government 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.
, 355 U. S. 243
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 likelihood 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. [Footnote 14
As we have noted, this Court has had relatively few occasions to
comment directly on the constitutional restrictions on Government
appeals. The few relevant
Page 420 U. S. 346
cases are nonetheless consistent with double jeopardy cases from
related areas, in focusing on the prohibition against multiple
trials as the controlling constitutional principle.
The Court first addressed the question in United States v.
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 indictment, was sufficient to bar a subsequent
prosecution for the same offense. 163 U.S. at 163 U. S. 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 Constitution." Id.
at 163 U. S.
Eight years later, the Court was again faced with a double
jeopardy challenge to a Government appeal. In Kepner v. United
States, 195 U. S. 100
(1904), [Footnote 15
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."
at 195 U. S. 133
Permitting an appeal in Kepner
would, in effect, have
exposed the defendant to a second trial in violation of the
constitutional protection against multiple trials for the same
Respondent contends that Ball
Page 420 U. S. 347
the proposition that the key to invoking double jeopardy
protection is not whether the defendant might be subjected to
multiple trials, but whether he can point to a prior verdict or
judgment of acquittal. In Ball,
however, 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:
"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
195 U.S. at 195 U. S.
The respondent seeks some comfort from this Court's more recent
decision in Fong Foo v. United States, 369 U.
(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 interrupted the
Government's case and directed the jury to return verdicts of
acquittal as to all the defendants. This 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 judgment of acquittal and directed that the petitioners be
Page 420 U. S. 348
tried again for the same offense." Id.
at 369 U. S. 143
The Court noted that, although retrial is sometimes permissible
after a mistrial is declared but no verdict or judgment has been
entered, the verdict of acquittal foreclosed 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
ruling appealed from is based upon facts outside the face of the
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 post-verdict motion, however, the
District Court entered what it termed an "arrest of judgment,"
dismissing the indictment on the ground that Sisson could not be
convicted because his sincere opposition to the war in Vietnam
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. Justice 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. 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
Page 420 U. S. 349
incorporate rulings that relied upon evidence introduced at
trial. Second, the District Court's ruling failed to satisfy 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 "insufficient" under the appeals statute,
since it was sufficient to charge an offense and it did not allege
facts that, in themselves established the availability of a
constitutional privilege. In Part II-C of the opinion, for which
Mr. Justice Black provided a majority of the Court, Mr. Justice
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 399 U. S. 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 Criminal Appeals Act.
The legislative history of the Act made it clear that Congress did
not contemplate review of verdicts of acquittal, no matter how
erroneous 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
"Quite apart from the statute, it is, of course, well settled
that an acquittal can 'not be reviewed, on error or otherwise,
without putting [the defendant] twice in jeopardy, and thereby
violating the Constitution. . . .
Page 420 U. S. 350
[I]n this country, a verdict of acquittal, although not followed
by any judgment, is a bar to a subsequent prosecution for the same
offence.' United States v. Ball, 163 U. S.
, 163 U. S. 671
399 U.S. at 399 U. S.
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 post-verdict ruling
was not a common law arrest of judgment, but an acquittal; (2)
under the Ball
case, an acquittal cannot be appealed
without offending the Double Jeopardy Clause; thus (3) the District
Court's ruling in Sisson
was shielded from review as a
matter of constitutional law.
We are constrained to disagree. A more natural reading of this
passage suggests that the reference to the Double Jeopardy Clause
was meant to apply to the hypothetical jury verdict, not to the
order entered by the trial court in Sisson
] Appeal from
Page 420 U. S. 351
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 Constitution 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 retried.
399 U.S. at 399 U. S. 20
18. [Footnote 18
Accordingly, we find Sisson
no authority for the
proposition that the Government cannot constitutionally appeal any
post-verdict order that would have been an unappealable acquittal
under the former Criminal Appeals Act.
The Government has not seriously contended in this case that any
ruling of law by a judge in the course of a trial is reviewable on
the prosecution's motion, [Footnote 19
] 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.
] Mr. Justice
Page 420 U. S. 352
Holmes accepted as common ground that the Double Jeopardy Clause
forbids "a trial in a new and independent case where a man already
had been tried once." 195 U.S. at 195 U. S. 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 permitting 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 favorable 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 after 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 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. [Footnote 21
These interests, however, do not apply in the case of a
post-verdict 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
Page 420 U. S. 353
may appeal from that ruling without running afoul of the Double
Applying these principles to the present case is a relatively
straightforward task. The jury entered a verdict of guilty against
Wilson. The ruling in his favor on the Marion
be acted on by the Court of Appeals or, indeed, this Court, 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
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 consider the merits of the Government's appeal.
Reversed and remanded.
The Court of Appeals noted that the portion of the investigation
that focused on Wilson was completed by June, 1969. 492 F.2d 1345,
1346. The FBI agent who conducted the investigation testified that
he had communicated with representatives of the Strike Force and
the United States Attorney's Office about the case as early as
December, 1969. App. 28.
Significantly, the statute expressly provided that the
Government could not have a writ of error "in any case where there
has been a verdict in favor of the defendant." The legislative
history indicates that this provision was added to ensure that the
statute would not conflict with the principles of the Double
Jeopardy Clause. See
41 Cong.Rec. 2749-2762, 2819.
The statute was amended several times, but the amendments did
not render its construction any simpler. The most significant
change in the statute was the 1942 amendment, 56 Stat. 271, in
which Congress provided that some dismissals should be reviewed in
the courts of appeals and that the Supreme Court's appellate
jurisdiction 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 property. 82 Stat. 237.
See, e.g., United States v. Weller, 401 U.
(1971); United States v. Sisson,
399 U. S. 267
(1970); United States v. Mersky, 361 U.
(1960); United States v. Borden Co.,
308 U. S. 188
The new statute, 18 U.S.C. § 3731, was passed as Title III of
the Omnibus Crime Control Act of 1970, Pub.L. 91-644, 84 Stat.
Expressions of the principle can be found in English law from
the time of the Year Book, and, as early as the 15th century, the
English courts had begun to use the term "jeopardy" in connection
with the principle against multiple trials. See
"Jeopardy" During the Period of the Year Books, 82 U.Pa.L.Rev. 602
Part I, Art. XVI, of New Hampshire's Constitution of 1784
"No subject shall be liable to be tried, after an acquittal, for
the same crime or offence."
It contained no prohibition, however, against retrial after
conviction. 4 F. Thorpe, The Federal and State Constitutions 2455
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 punished more than once for the same offence."
1 J. Elliott, Debates on the Federal Constitution 328 (1876).
This language borrowed heavily from Blackstone's formulation.
Maryland also sent a proposed 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
2 Elliott, supra,
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. Representative 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 Cong. 753 (1789).
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.
M. Friedland, Double Jeopardy 287 (1969).
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 conviction, or that the first jeopardy
continues until he is acquitted or his conviction becomes final,
see Green v. United States, 355 U.
, 355 U. S. 189
(1957). As Mr. Justice Harlan noted in United States v.
Tateo, 377 U. S. 463
377 U. S.
-466 (1964), however, the practical justification for
the exception is simply that it is fairer to both the defendant and
the Court emphasized the limited scope of
this exception 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
9 Wheat. at 22 U. S.
On 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
303 U. S. 399
(1938). See also One Lot Emerald Cut Stones v. United
States, 409 U. S. 232
409 U. S.
-236 (1972); Stroud v. United States,
251 U. S. 15
251 U. S. 18
(1919); cf. United States v. Jorn, 400 U.
, 400 U. S. 479
Judge Learned Hand took this position in United States v.
172 F.2d 740, 743 (CA2), appeal dismissed on the
336 U.S. 934 (1949).
"So long as the verdict of guilty remains as a datum, the
correction of errors of law in attaching the proper legal
consequences to it do not trench upon the constitutional
The challenge in Kepner
was based not on the
Constitution, but on a statutory provision that extended double
jeopardy protection 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 v. United
355 U.S. at 355 U. S. 197
we accept Kepner
as having correctly stated the relevant
double jeopardy principles.
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
251 U. S. 18
(1919); Palko v. Connecticut, 302 U.
, 302 U. S.
Under respondent's interpretation of the passage, the reliance
is difficult to explain. The rationale of the
case, and particularly the portion quoted in
turns on the fact that an appeal might result in a
second trial, which would not have been necessary in
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 quotation from the Ball
In addition, respondent's proposed reading of the passage would
constitutionalize the very common law distinctions that the
Court anticipated an amended Criminal Appeals Act
would eliminate. If no post-verdict order except a common law
arrest of judgment is constitutionally appealable, this Court and
the courts of appeals would continue to be plagued with the
"limitations imposed by [the] awkward and ancient [Criminal
Appeals] Act," 399 U.S. at
399 U. S. 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
On 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 marked a significant development in double jeopardy law,
deserving of plenary treatment.
The Government has advanced this argument, if rather cautiously,
in its brief in a companion case, United States v. Jenkins,
p. 420 U. S. 358
upon which it has relied in this case. See
United States in United States v. Jenkins,
O.T. 1974, pp.24-25,n.16.
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).
See Ashe v. Swenson, 397 U. S. 436
397 U. S.
-447 (1970); id.
at 397 U. S. 455
n. 11, 397 U. S. 459
(BRENNAN, J., concurring); Green v. United States,
U.S. at 355 U. S. 187
Comment, Double Jeopardy and Government Appeals of Criminal
Dismissals, 52 Tex.L.Rev. 303, 340-342 (1974).
MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BRENNAN joins,
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 reception. 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 indictment was
returned in October, 1971, three days prior to the running of the
statute of limitations. By that time,
Page 420 U. S. 354
neither of the two signatories to the union check was 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 pre-indictment 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 pre-indictment delay, prejudiced his
defense. After two pretrial hearings, the District Court denied the
At the trial, it was established that the local's attorney, 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
testimony 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
Respondent testified that he had never directed anyone to issue
the check in question, and that he had reimbursed Burke personally
for the $1,000 deposit. He did acknowledge, however, that Burke had
told him in November, 1966, shortly after the payment reached the
hotel, that the bill had been paid.
At the close of evidence respondent renewed his motion to
dismiss on account of pre-indictment delay. The judge withheld
decision until receiving the verdict.
The jury found respondent guilty. The District Court
Page 420 U. S. 355
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 Government'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 utmost importance to the trial," the court
ruled that respondent had been substantially prejudiced by the
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.
, facts developed 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,"
at 399 U. S. 290
which was described as "a legal determination on the basis of facts
adduced at the trial relating to the general issue of the case,"
at 399 U. S. 290
n.19, a reading reaffirmed in United States v. Jorn,
400 U. S. 470
400 U. S. 478
In the present case, the District Court reviewed the evidence
given at the trial and concluded that the respondent had been
prejudiced because of testimony the missing witness (terminally
ill) probably would have 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 United
States v. Ball, 163 U. S. 662
163 U. S. 671
the Court said in a dictum that has had a continuing impact on the
Page 420 U. S. 356
"The verdict of acquittal was final, and could not be
on error or otherwise, without putting him twice in
jeopardy, and thereby violating the Constitution."
In Kepner v. United States, 195 U.
, the defendant was acquitted of an embezzling
charge following a nonjury trial in a court of the Philippines. The
Government took an appeal to the Supreme Court of the Philippines,
which independently reviewed the record and found Kepner guilty.
This Court reversed, holding that the Double Jeopardy Clause barred
the entry of conviction by the appellate court. *
considered appellate review by the Philippine Supreme Court to be
equivalent to the second trial in Ball.
"It 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 again tried for the same
195 U.S. at 195 U. S.
Fong Foo v. United States, 369 U.
, involved a trial not completed but promising to
be "long and complicated," 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
Page 420 U. S. 357
egregiously erroneous foundation," id.
at 369 U. S. 143
The dictum of Ball,
quoted above, was deemed controlling.
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 reviewable, for it is part and
parcel of the process of weighing the Government's evidentiary case
against respondent. Therefore, we should affirm the judgment
* 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 dictum from Ball