*1 FONG FOO v. UNITED STATES. et al. Argued January No. 64. 16, 19, 1962. Decided March 1962* Arthur Richenthal for argued petitioners causes and filed for petitioner briefs No. 65. E. Feller David filed briefs for No. 64.
Solicitor argued General Cox causes the United him Attorney States. With on the briefs were Assistant Miller, Stephen Poliak, General Rosenberg, J. Beatrice R. Philip Monahan and J. F. Bishop.
Per Curiam. petitioners, corporation and its employees, two of were brought to trial before a in a federal district charging indictment a conspiracy and the substantive offense of concealing material facts a matter jurisdiction within the of an agency of the United in violation of 18 U. S. C. 371 and 1001. After seven §§
*Together Co., Inc., with No. Standard Coil Products v. United States, also on certiorari to the same Court. complicated trial,
days long what to be promised appeared fourth government three *2 point At that the district process testifying. was in the of acquittal of as to return verdicts judge directed the to acquittal formal of defendants, judgment all the and a subsequently entered. was judge’s action record that the district was
The
shows
im-
grounds: supposed
both
two
upon
based
one or
of
part
the
of the Assistant
States
proper conduct on
United
and a
Attorney
prosecuting
case,
sup-
the
who was
testimony
credibility
lack of
in the
of the witnesses
posed
up
point.
had
to
for
who
that
the
testified
for a
of mandamus
petition
The
filed a
writ
praying
in
of
the First
that
Appeals
Circuit,
the Court
and
case
the
be vacated
the
reas-
judgment of
The
the
the
signed
granted
petition,
for trial.
by
ground
under the circumstances revealed
the rec-
that
power
judg-
ord
trial
to direct the
the
court was without
separately,
question.
Judge
ment in
Aldrich concurred
acquittal had been
finding
judgment
that
of
directed
solely
improper
of the
supposed
based
on
conduct
prosecutor,
colleagues
his
that the dis-
agreeing
with
an acquittal
direct
on
judge
power
trict
was without
to
F.
certiorari
to
ground.
granted
that
286
2d 556. We
in
question
a
of
importance
consider
administration
in
366
S. 959.
justice
the federal courts.
U.
holding
power
In
the District Court was without
that
acquittals
by
the circumstances disclosed
direct
under
record,
Appeals
primarily upon
relied
two
the Court
States,
Court,
parte
of this
Ex
decisions
United
S.U.
parte
Ex
27, and
Neither of those person subject that no shall “be Fifth Amendment of life put jeopardy to be twice for the same offence is at provision very limb.” That constitutional but case, and we cannot conclude that present root guaranty when the Court set violated directed that aside the again for offense. petitioners be tried the same were tried under a valid indictment jurisdiction federal court which had over them *3 and over the matter. trial did not subject The ter minate prior entry judgment, to the of as in Gori v. S. 364. 367 U. It terminated with entry of a final of judgment acquittal as to each peti tioner. The of thought, Court not without reason, that the was based an egregiously erroneous foundation. verdict of Nevertheless, “[t]he acquittal was final, and could not be reviewed . . . with in putting petitioners] out jeopardy, twice [the thereby violating the Constitution.” United States v. Ball, 163 671. U. S.
Reversed. Ms. Justice took no in part Whittaker the considera- tion decision of these cases. Harlan,
Mr. Justice concurring. IWere able find, Judge as did, Aldrich that the Dis- trict judgment Court’s of acquittal was based solely on the Assistant United States Attorney’s alleged miscon- duct, I would think that a retrial would prevented not be by the Double Jeopardy Clause of the assuming may a trial court Amendment. Even that Fifth a judg- in to direct circumstances, extreme power, declaring mistrial, a because acquittal, instead ment of I seri- proposition which prosecutor’s a misconduct —a power that existed doubt —I not think such ously do case. examina- circumstances of this But since majority unable, the record me as it did tion of leaves to attribute the action the Court of Appeals, factor I concur alone, Court to this District of reversal. judgment Clark, dissenting.
Mr. Justice obliged I am expanse such that speaks with Court judgment final says It that because “a to dissent. pursuant a directed verdict the acquittal” entered “acquittal” of such cannot be reviewed even propriety main though the Government had concluded its time the was directed. The District Court at the verdict here no clearly power under the circumstances judgment a verdict of or to direct enter my In a trial thereon. view when court has no such a is verdict, direct based thereon nullity. “acquittal” magic The word is no this context open freeing sesame in this case two persons absolv- ing corporation grand charges from serious fraud upon the Government. *4 the record it
On before us matters whether the pursuant so-called was to the trial court’s con- clusion that the Government’s up point witnesses to that credibility lacked or was based on alleged the misconduct prosecution. the first On the point, only Government had examined three of its the process of examining a fourth when the was entered. The first and third witnesses were merely preliminary, offered to iden- by explain performed the functions tify documents corporate for the defendant. the individual defendants give the explanation The second was offered to which radiosondes, gathering data, weather devices con- furnishing were the Government under totaling during million It was tracts several dollars. testimony entirely explanatory the latter’s the — —that called purpose requiring a recess for the stated Attorney to the United States “consider whether public aby interest is served further of this Upon vigorous case.” insistence States Attorney himself, trial was resumed and the Govern- called ment its third and fourth witnesses. The fourth testify as to witness was the first the fraud which to a related deliberate scheme government inspectors conceal from defects in the devices. During direct examination fourth was “not witness sure” as to the date a certain conference at which rep- corporate present. resentatives defendant were Thereafter at a period memory recess his was refreshed during a conversation with one of the Assistant United Attorneys. Upon States resuming the stand he corrected previous testimony his toas the date, placing it a few months earlier. On cross-examination he admitted that error had been called to by his attention the Assistant. The court then excused the jury excoriating and after Assistant the jury called back into session and directed the verdict acquittal.
It is fundamental in our criminal jurisprudence that the public right has a person legally who stands by grand jury indicted publicly on the charge. tried judge No the power has before hearing testimony proffered by the Government or at least canvassing same to enter a of acquittal and thus frus- trate the Government in the performance duty of its prosecute those who violate its law. *5 court, Attorney advised the the United States
Here, as ... to heard “many be only three to only begun had . testified. The court from . had case conspiracy a protracted to be promised hear what not many witnesses. Government involving Appeals observed, majority rested. Court As the District Court: . . . terminated the
“abruptly Government’s had an long opportunity before Government had and, moreover, case; show whether or not it had a or ignorance he so in the exact nature did either guilt which cogency specific .evidence counsel said he had and was Government’s available ready present.” 286 F. at 562-563. 2d, stage At such a case the no District Court had power to prejudge proof the Government’s it insuf- —find ficient unconvincing set the free. —and if
On the second even point, misconduct, there were court still had no punish the Government because of the indiscretion of its lawyer. As this Court said McGuire v. 273 U. “A (1927), S. criminal is more game than a which may game be checkmated and the lost merely its because officers have played according if most, rule.” At there had been misconduct, remedy would been to declare mistrial and impose appro- priate punishment upon the Assistant United States Attorney, rather than upon public. In my view judgment of the Court of should, therefore, be affirmed.