UNITED STATES v. WILSON
No. 73-1395
Supreme Court of the United States
Argued December 9, 1974—Decided February 25, 1975
420 U.S. 332
Philip D. Lauer argued the cause and filed a brief for respondent.
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
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 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 presi-
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 trial.
The District Court reversed its earlier ruling and dismissed the indictment on the ground that the preindictment 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 to
The Government sought to appeal the District Court‘s ruling pursuant to the Criminal Appeals Act,
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 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 postverdict ruling. In the alternative, the Government urges
A
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,
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.
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.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.
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
B
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. S. 121, 151-155 (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 offense.
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.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.8 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 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.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
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,10 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 appeals, at least where those appeals would not require a new trial.
C
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
“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.” Id., at 717.
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. Ex parte Lange, 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. 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) (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. S. 662.11
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. 579, 580 (1824).12
By contrast, where there is no threat of either multiple punishment or successive prosecutions, the Double Jeopardy Clause is not offended.13 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. S. 503 (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
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, 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. S. 233, 243 (1957).
It is difficult to see why the rule should be any different simply because the defendant has gotten a favorable postverdict 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.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
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 indictment, 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 Constitution.” Id., at 671.
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),15 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.” Id., at 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 offense.
Respondent contends that Ball and Kepner stand for
“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.” 195 U. S., at 133.
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 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
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 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 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
“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 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 offence.’ 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 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 itself.17 Appeal from the hypothet-
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 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 290 n. 18. Accordingly, we find Sisson no authority for the proposition that the Government 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 any ruling of law by a judge in the course of a trial is reviewable on the prosecution‘s motion,18 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.19 Mr. Jus-
A system permitting review of all claimed legal errors would have symmetry to recommend it and it 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 re-examine 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.20 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
III
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 motion could 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.
MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BRENNAN 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 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,
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 the union.
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 preindictment delay. The judge withheld decision until receiving the verdict.
The jury found respondent guilty. The District Court
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 developed in the trial of Sisson led a jury to convict him. But after the jury verdict the District Court rendered a postverdict opinion called “an arrest of judgment” which this Court called “a post-verdict directed acquittal,” id., at 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,” id., at 290, n. 19, a reading reaffirmed in United States v. Jorn, 400 U. S. 470, 478 n. 7.
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, 671, the Court said in a dictum that has had a continuing impact on the law:
In Kepner v. United States, 195 U. S. 100, 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.21 The Court considered appellate review by the Philippine Supreme Court to be equivalent to the second trial in Ball. The Court accordingly held:
“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 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 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 upon an
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 below.
Notes
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 would continue to be plagued with the “limitations imposed by [the]
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.