DESPINA SMALIS AND ERNEST SMALIS, PETITIONERS V. COMMONWEALTH OF
PENNSYLVANIA

   No. 85-227

   In the Supreme Court of the United States

   October Term, 1985

   On Writ of Certiorari to the Supreme Court of Pennsylvania

   Brief for the United States as Amicus Curiae Supporting Respondent

            TABLE OF CONTENTS
   Jurisdiction
   Question Presented
   Interest of the United States
   Introduction and summary of argument
   Argument:
      The Double Jeopardy Clause does not prohibit
      appeal in this case
      A. The Double Jeopardy Clause does not bar a
          retrial following appeal of a midtrial order by the
          court erroneously terminating a prosecution on
          the ground that the evidence is legally
          insufficient
          1. The Double Jeopardy Clause has been held
             to bar retrial for the same offense following
             an acquittal by the factfinder
          2. A ruling by the Court that the evidence is
             legally insufficient to sustain a guilty verdict
             is not a verdict of acquittal that automatically
             bars a retrial
      B. There is no Double Jeopardy bar to appeal of
          a midtrial judicial ruling of insufficiency if a
          successful appeal would simply result in a resumption
          of the first trial
   Conclusion

                             JURISDICTION

   The United States believes that there is a serious question whether
the Court has jurisdiction in this case.  Certiorari was sought
pursuant to 28 U.S.C. 1257(3), which permits review by this Court only
of "(f)inal judgments or decrees" of a state court.  The decision of
the Pennsylvania Supreme Court upholding the prosecution's right of
appeal did not terminate this case, but rather remanded to the
Superior Court for further proceedings, consisting of a determination
of the merits of the Commonwealth's appeal.  In the context of a
criminal prosecution, finality is normally determined by the
imposition of sentence (Flynt v. Ohio, 451 U.S. 619, 620 (1981)), and
of course no conviction has been had, let alone sentence imposed, in
the instant case.  /1/

   It is of course true that petitioners here assert a right to be
free of allegedly impermissible double jeopardy and that appeals
invoking such a right are treated as being from final orders under the
"collateral order" doctrine.  Abney v. United States, 431 U.S. 651
(1977).  But that is true only because, in cases like Abney, a refusal
to entertain an appeal could, if the double jeopardy claim were
meritorious, lead to an irremediable violation of the defendant's
constitutional right (and because the other elements of the collateral
order doctrine are also held to be met in such an appeal).  These
principles would no doubt lead to the conclusion that a judgment
remanding this case for further trial proceedings would exhibit the
requisite finality to satisfy Section 1257 for purposes of presenting
a double jeopardy claim to this Court.

   But that is not what has happened here.  Rather, the case has been
remanded for further appellate proceedings.  Petitioners do not assert
-- nor could they -- that such proceedings would themselves violate
double jeopardy constraints.  But the consideration of the merits of
the appeal by the Superior Court may well result in an affirmance of
the trial court's ruling -- thereby removing any possibility of injury
to petitioners' double jeopardy rights by eliminating the prospect of
further trial proceedings.  If, on the other hand, the Superior Court
reverses the grant of the demurrer and remands for continuation of the
trial, and the Pennsylvania Supreme Court upholds that ruling,
petitioners' claim will be ripe for this Court's review at that time.
At present, however, the case is plainly in an interlocutory posture,
and the petition should be dismissed for lack of jurisdiction.  /2/

                          QUESTION PRESENTED

   Whether the Double Jeopardy Clause bars the prosecution from
appealing an order of the court sustaining a demurrer at the close of
the prosecution's case on the basis of legal insufficiency of the
evidence.

                     INTEREST OF THE UNITED STATES

   The question presented in this case involves the constitutionality
of an appeal by the prosecution from the sustaining of demurrers by
the trial court at the close of the prosecution's case, pursuant to
Pennsylvania rules of criminal procedure.  Rule 29 of the Federal
Rules of Criminal Procedure provides a similar mechanism for
pre-verdict judicial termination of a trial, and a significant number
of federal prosecutions are terminated at this stage by the trial
court's entry of a judgment of acquittal.  The United States has a
strong interest in being able to secure correction of legally
erroneous preverdict terminations of criminal trials.

                 INTRODUCTION AND SUMMARY OF ARGUMENT

   The law of double jeopardy is judge-made law, evolved by this Court
in an effort to give content to the central idea embodied in the
Double Jeopardy Clause of the Fifth Amendment that unjustified
repetitive litigation of criminal charges should not be permitted.
Among the principles that have achieved acceptance is that the
prosecution may not seek appellate review of an "acquittal" if the
result of a reversal of appeal would be a new trial.  And the Court
has generally assumed that this principle would extend to a legal
ruling on the sufficiency of the evidence entered by the trial court.
While this case can be affirmed on the ground that a successful
prosecution appeal would result only in a continuation of the first
jeopardy, rather than an impermissible second jeopardy, we believe
that this case offers the Court an occasion to consider whether it
should reexamine some of its assumptions about the status of rulings
regarding legal sufficiency of the evidence.

   A. It is of course beyond question that the process of criminal
prosecution includes numerous procedural advantages for the defendant,
most notably the extremely heavy burden of proof that the prosecution
is required to shoulder.  Each of these advantages is rationally
rooted in the values of the criminal justice system, particularly the
allocation of the risk of error to minimize the danger of convicting
an innocent person.  The advantage involved in this case -- the
defendant's ability to retain the benefit of a legally erroneous
"acquittal" that he has induced the trial court (not acting as
ultimate fact-finder) to enter -- has no comparable rational nexus to
the policies of the criminal law.  None of the policies that have been
put forth by this Court to justify the "special weight" accorded to
jury acquittals has any applicability to such a legal ruling.

   Thus, any sensible balancing of the relevant double jeopardy
interests compels the conclusion that the prosecution should not be
barred from appealing a midtrial termination sought by the defendant
on the grounds of legal insufficiency of the evidence.  A contrary
rule imposes substantial costs on society without advancing any double
jeopardy interest of the defendant.  As was explained in United States
v. Scott, 437 U.S. 82 (1978), the relevant interest protected by the
rule restricting retrials in cases of pre-verdict termination of the
first trial is the "valued right" to have the trial completed before
the original tribunal.  A defendant voluntarily relinquishes that
right by a motion for mistrial (see United States v. Dinitz, 424 U.S.
600 (1976)) or by a request that the trial be terminated prior to
verdict on some other ground, such as the claim in Scott that there
had been impermissible preindictment delay.  Double jeopardy
principles do not bar the retrial that would follow a successful
government appeal in such a case because the need for a retrial has
been occasioned by the defendant's election to terminate the first
trial prior to verdict rather than deferring his claim for
post-verdict consideration.

   While Scott stated, without separately analyzing the matter, that
acquittals are different and are excepted from this principle, it is
difficult to construct a persuasive basis for such a conclusion in the
case of "acquittals" by the court attacked solely for legal error.
/3/ As with the claim in Scott, the assertion that the evidence is
legally insufficient to support a guilty verdict is available as a
ground for post-verdict relief.  And if a post-guilty-verdict
acquittal is entered, the prosecution can appeal and secure a
determination of the legal sufficiency of the evidence without the
necessity for a retrial and therefore without raising any double
jeopardy problem (see United States v. DiFrancesco, 449 U.S. 117, 130
(1980)).  It is solely the defendant's action in seeking pre-verdict
termination by entry of the court's ruling in advance of the
factfinder's consideration of the evidence that attaches the added
price of retrial to the cost of correcting any error in the
defendant's favor that may have been made by the trial court.  (The
different types of legal error that can fall under the rubric of an
"acquittal" by the court are discussed at note 17, infra.)

   In sum, we submit that a rule applying to legally erroneous rulings
of insufficiency by the court the special status accorded to legally
erroneous acquittals by the factfinder cannot be squared with any
reasonably evenhanded concept of justice.  In these situations, it is
the defendant who has procured the early termination of the trial
despite the prosecution's efforts to secure a verdict.  Is it right to
allow him to complain that he should not be subjected to the retrial
that his own action has necessitated?  See Oregon v. Kennedy, 456 U.S.
667, 673 (1982).  And if the defendant has led the trial court into
error, to the prejudice of the prosecution, it hardly seems just to
bar the prosecution, as the injured party, from securing relief.
Application of such a rule compromises the fairness of the criminal
justice system by allowing guilty defendants to go free without
perceptibly advancing any of the policies embodied in the Double
Jeopardy Clause.

   B. In any event, even if the court's order here is treated as an
"acquittal," there is no bar to appeal because further proceedings in
the trial court would be a continuation of the first trial and
therefore not a "second jeopardy," to which alone the constitutional
prohibition applies.  There is no reason why a defendant should go
free just because a court finds the evidence insufficient in midtrial,
if the court reconsiders its ruling or is reversed on appeal prior to
the discharge of the jury.  The Double Jeopardy Clause does not
protect against a single trial, and it is not implicated if a court
recesses and then resumes a trial.  That fact does not change simply
because there is appellate consideration of a legal issue during the
recess, and therefore the resumption of trial here after the court's
recess would still be part of the first trial.  Finally, it is well
established that the defendant has no right to retain the benefit of
an erroneous judicial finding of insufficiency since a
post-guilty-verdict "acquittal" by the court is appealable.

                               ARGUMENT

   THE DOUBLE JEOPARDY CLAUSE DOES NOT PROHIBIT APPEAL IN THIS CASE

 A. The Double Jeopardy Clause Does Not Bar A Retrial Following Appeal
Of A Midtrial Order By The Court Erroneously Terminating A Prosecution
On The Ground That The Evidence Is Legally Insufficient

 1. The Double Jeopardy Clause Has Been Held To Bar Retrial for the
Same Offense Following an Acquittal by the Factfinder

   In Kepner v. United States, 195 U.S. 100 (1904), this Court
rejected the theory of "continuing jeopardy" propounded in dissent by
Justice Holmes and held that an acquittal by the factfinder could not
be appealed, even if it was erroneous, if the appeal constituted or
would result in a retrial.  In United States v. Wilson, 420 U.S. 332,
351-352 (1975), the Court affirmed in dictum that the holding of
Kepner is rooted in the Double Jeopardy Clause and that it applies to
an ordinary appeal on the basis of legal error following a verdict of
acquittal if a successful appeal would necessitate a retrial.  /4/
Although the rule that a verdict of acquittal, even if erroneous,
insulates a defendant against a retrial has come to be considered a
fundamental principle of double jeopardy law, United States v. Scott,
437 U.S. 82, 90 (1978), it is worth recalling that in Palko v.
Connecticut, 302 U.S. 319, 323, 329 (1937), the Court found that this
result is not compelled by -- indeed, is not even particularly
consistent with -- any basic notions of fairness or due process.

   The rule insulating erroneous acquittals from correction has been
described as "implausible on its face" (Westen & Drubel, Toward a
General Theory of Double Jeopardy, 1978 Sup. Ct. Rev. 81, 123), and it
imposes substantial costs on the fairness of the criminal justice
system.  As the Court has noted, it permits "the release of some
defendants who have benefited from instructions or evidentiary rulings
that are unduly favorable to them." Wilson, 420 U.S. at 352.  In some
cases, these defendants may be clearly guilty of grave crimes, and in
almost all these cases the error at trial is not the fault of the
prosecutor but rather has been committed by the trial court at the
instigation of the defense.  /5/ Thus, in cases where a verdict of
acquittal results from a legal error, the effect of the "special
weight" accorded acquittals (see United States v. DiFrancesco, 449
U.S. 117, 129 (1980)) is to deny the government its "one full and fair
opportunity" to litigate the question of the guilt of the accused (see
Arizona v. Washington, 434 U.S. 497, 505 (1978));  the result is often
a windfall for a guilty defendant.  /6/

   The judgment necessarily underlying the special protection of
erroneous acquittals is that the double jeopardy policies advanced by
this rule outweigh its negative effects. Although it has never treated
the matter extensively, the Court has adverted on several occasions to
these policies.  In Wilson, the Court noted that appeal of acquittals
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." 420
U.S. at 352 (footnote omitted).  More generally, the Court has
concluded that "(t)o permit a second trial after an acquittal, however
mistaken the acquittal may have been, would present an unacceptably
high risk that the Government, with its vastly superior resources,
might wear down the defendant so that 'even though innocent he may be
found guilty.'" United States v. Scott, 437 U.S. at 91, quoting Green
v. United States, 355 U.S. 184, 188 (1957).  /7/ A noted commentator,
finding these and other suggested rationales unpersuasive, has
concluded that the rule is designed to preserve the jury's right to
"acquit against the evidence." Westen, The Three Faces of Double
Jeopardy:  Reflections on Government Appeals of Criminal Sentences, 78
Mich. L. Rev. 1001, 1012-1023 (1980);  see United States v.
DiFrancesco, 449 U.S. at 130 n.11.  /8/ We mention this matter not for
the purpose of asking reconsideration of the settled rule insulating a
verdict of acquittal by the finder of fact from prosecution efforts to
secure a retrial, but because we believe it sheds light on the
question whether the Court should confirm the extension of this
principle to the quite different setting of judicial rulings on purely
legal questions, which we now proceed to consider.

 2. A Ruling by the Court that the Evidence is Legally Insufficient to
Sustain a Guilty Verdict is not a Verdict of Acquittal that
Automatically Bars a Retrial

   a. The rule that a verdict of acquittal is an absolute bar to a
retrial does not answer the question presented here.  This case does
not involve a verdict of acquittal entered by the factfinder;  it
involves the sustaining of demurrers by the court, which entails a
legal determination that the evidence is insufficient to support a
guilty verdict.  /9/ It is well settled that such a ruling is
reviewable on appeal if entered after verdict, since in such a case
reversal would not necessitate a retrial (see United States v.
DiFrancesco, 449 U.S. at 130;  United States v. Jenkins, 420 U.S. 358,
365 (1975);  United States v. Singleton, 702 F.2d 1159, 1161 n.8 (D.C.
Cir. 1983) (collecting cases)).  The standard of review of a Rule 29
(Fed. R. Crim. P.) acquittal is the same as for any other legal
ruling;  no deference is paid to the trial court's assessment of the
evidence, though that would be appropriate if it were a factual
determination.  See, e.g., United States v. Singleton, 702 F.2d at
1161-1163;  United States v. Steed, 674 F.2d 284, 286 (4th Cir. 1982)
(en banc).

   We submit that there is no reason in law or policy why the
government should automatically be barred from appealing an erroneous
legal ruling of insufficiency even if it is made prior to verdict.
That is, we contend that a court's legal conclusion that the evidence
is insufficient, although labeled an "acquittal" in Rule 29, is not in
constitutional analysis the kind of true "acquittal" entitled to the
special weight accorded to the factfinder's determination of
innocence;  rather, the judicial decision to take the case away from
the factfinder should be reviewable on appeal to the same extent as
other legal errors, even if correction of an erroneous ruling would
necessitate a retrial.

   At the outset, it is important to emphasize that the double
jeopardy issue arises in this context only when the trial court has
erred and the defendant has received an unjustified termination of the
trial in his favor;  if the trial court's ruling is correct, it will
be affirmed on appeal and there will be no occasion for the further
proceedings in the trial court that implicate the Double Jeopardy
Clause.  The question then is whether there is a double jeopardy
policy that is sufficiently weighty to justify making such errors
unappealable, thereby conferring a windfall acquittal on the
defendant;  we submit that there is no double jeopardy interest of the
defendant implicated in this context at all, much less one that would
justify such an untoward result.

   The Double Jeopardy Clause involves a balancing of the interests of
defendants against those of society in seeing that the criminal
justice system operates rationally and that the guilty are brought to
justice.  See United States v. Scott, 437 U.S. at 92;  United States
v. Tateo, 377 U.S. 463, 466 (1964).  One of the important interests of
the defendant is his "'valued right to have his trial completed by a
particular tribunal'" (United States v. Dinitz, 424 U.S. 600, 606
(1976), quoting Wade v. Hunter, 336 U.S. 684, 689 (1949));  somewhat
akin to that is the government's right to a "complete opportunity to
convict those who have violated its laws" (Arizona v. Washington, 434
U.S. 497, 509 (1978)).  When a trial proceeds to verdict in the
ordinary course, both the defendant and the prosecution have received
their opportunity to obtain the judgment of the designated factfinder.
 If the defendant is dissatisfied with that judgment he may seek to
have it overturned on the ground that it is based on legal error.  If
the prosecution is dissatisfied with the judgment, it does not have
the same option.  The double jeopardy interests identified in the
preceding section are deemed to outweigh the prosecution's interests
in an error-free opportunity to convict.

   This relatively straightforward scheme is disrupted when the trial
is terminated before the factfinder has an opportunity to enter a
verdict.  The defendant has not had his trial completed by a
particular tribunal;  if his trial is to be completed now, he will
have to be subjected to a second jeopardy, which raises a question
under the Double Jeopardy Clause.  On the other hand, if the defendant
is not subjected to a retrial despite the erroneous and premature
termination of his first trial, the prosecution will have been denied
its one complete opportunity to convict him.

   In balancing the relevant double jeopardy interests in such cases,
the Court has placed great importance on whether the termination of
the first trial was at the instance of the defendant or against his
will.  When the first trial ends in a mistrial (a neutral conclusion),
the basic governing principles have long been settled and the
constitutionality of a retrial turns almost entirely on this factor.
If the defendant has moved for a mistrial, he can always be retried
except in the very rare case in which the mistrial was deliberately
provoked by prosecutorial misconduct (in which case it is not really
the result of a choice by the defendant).  See generally Oregon v.
Kennedy, 456 U.S. 667 (1982).  If the mistrial is granted over the
defendant's objection, however, a retrial is barred by the Double
Jeopardy Clause unless the decision to grant a mistrial was due to
"manifest necessity" -- a burden that is satisfied if there is a hung
jury but otherwise can be fairly difficult one to carry.  See Arizona
v. Washington, supra;  United States v. Perez, 22 U.S. (9 Wheat.) 579
(1824).  /10/

   The Court has only recently had to grapple with the situation where
the trial is terminated prematurely by a ruling in favor of the
defendant, rather than by the declaration of a mistrial.  /11/ The
question of a retrial in such a case arises only if the ruling is
tainted by legal error and the prosecution succeeds in having it
overturned on appeal.  Thus, with rare exceptions, this general issue
did not arise until the Double Jeopardy Clause was applied to the
states in 1969 and the federal statute governing prosecution appeals
(18 U.S.C. 3731) was expanded in 1970 to give the government the right
to appeal from rulings in favor of the defendant to the extent not
barred by the Double Jeopardy Clause.  The Court's first response to
this issue was to set forth a categorical rule that an order
terminating a trial in favor of a defendant can never be appealed if
reversal on appeal would necessitate a retrial.  United States v.
Jenkins, 420 U.S. at 369-370.  As more experience with government
appeals in criminal cases accumulated, however, the Court reconsidered
the balance of double jeopardy interests it had made in promulgating
this categorical rule.  In United States v. Scott, supra, the Court
overruled Jenkins and held that whether the premature termination of
the trial is at the defendant's behest or is forced upon him is of
crucial importance in this context, as it is in the mistrial context.

   In Scott, the defendant sought and was granted dismissal of the
indictment in the middle of his trial on the ground of preindictment
delay.  The Court held that the Double Jeopardy Clause did not bar an
appeal of this order or the retrial that would result from reversal.
The Court explained that the double jeopardy principle protecting
defendants against repeated attempts to convict them could not "be
expanded to include situations in which the defendant is responsible
for the second prosecution" (437 U.S. at 95-96).  Instead, the Court
equated the defendant's motion with a motion for a mistrial, which "is
deemed to be a deliberate election on his part to forgo his valued
right to have his guilt or innocence determined before the first trier
of fact" (id. at 93).  The Court concluded that "the Double Jeopardy
Clause, which guards against Government oppression, does not relieve a
defendant from the consequences of his voluntary choice" (id. at 99).

   In our view, the rationale of Scott compels the conclusion that the
appeal in this case does not violate the Double Jeopardy Clause.  As
in Scott, the defendants here have "not been 'deprived' of (their)
valued right to go to the first (tribunal);  only the public has been
deprived of its valued right to 'one complete opportunity to convict
those who have violated its laws'" (437 U.S. at 100, quoting Arizona
v. Washington, 434 U.S. at 509).  Here, the prosecution "was quite
willing to continue with (the trial) to show the defendant guilty
before the jury first empaneled to try him, but the defendant elected
to seek termination of the trial," which is "a far cry" from the
situation where a defendant has been acquitted at the close of trial
(see 437 U.S. at 96).  Under Scott, appeal here can be barred only if
the court's action sustaining the demurrer is considered an
"acquittal" and accorded the special weight that the Double Jeopardy
Clause identified by this Court support treating the order entered
here the same as a jury's verdict of acquittal.

   When the defendant has voluntarily elected to seek premature
termination of his trial on the ground of evidentiary insufficiency, a
retrial does not implicate the double jeopardy concerns that have been
identified at justifying the special treatment of acquittals (see
pages 10-11, supra).  A second trial would not "allow the prosecutor
to seek to persuade a second trier of fact of the defendant's guilt
after having failed with the first" (Wilson, 420 U.S. at 352) because
the defendant's own action has prevented the prosecutor's case from
reaching the first trier of fact.  Nor does a second trial present any
risk that the prosecution will "wear down" the defendant (United
States v. Scott, 437 U.S. at 91) when the first trial was aborted
before it reached the factfinding state.  The defendant is not being
forced to "'run the gantlet' a second time" (Ashe v. Swenson, 397 U.S.
436, 446 (1970), quoting Green v. United States, 355 U.S. at 190)
because, in contrast to the case where there has been a true acquittal
by the factfinder, he has taken action to terminate the trial before
it is turned over to the factfinder and therefore before he has been
exposed to any genuine risk of conviction.  Cf. Justices of Boston
Municipal Court v. Lydon, 466 U.S. 294, 310 (1984) (noting that
defendant in "jeopardy" only in technical sense when virtually nothing
harmful can happen to him at his first-tier trial).  And, of course,
to the extent the special treatment of acquittals rests on the jury's
power to "'acquit against the evidence'" (United States v.
DiFrancesco, 449 U.S. at 130 n.11), it has no application to a legal
ruling by the court that must be based on the evidence and applicable
law.

   Indeed, the Court has already recognized that a judicial ruling of
evidentiary insufficiency is substantially different for double
jeopardy purposes from a verdict of acquittal.  A post-verdict finding
of insufficiency by the court is appealable just like a post-verdict
dismissal on preindictment delay grounds (compare United States v.
DiFrancesco, 449 U.S. at 130, with United States v. Wilson, supra),
although an acquittal by the factfinder would not be appealable.
There is no reason why a midtrial termination, at the defendant's
behest, on grounds of legal insufficiency should not similarly be
treated like a dismissal on other legal grounds and be held appealable
(see United States v. Scott, supra).  See generally Westen, supra, 78
Mich. L. Rev. at 1020-1021.

   A rule granting absolute finality to midtrial judicial rulings of
legal insufficiency carries with it substantial costs for our criminal
justice system.  Under Fed. R. Crim. P. 29, numerous prosecutions are
terminated by the court before verdict, some of them on plainly
erroneous grounds that have been held to be unappealable because of
the Double Jeopardy Clause.  See, e.g., United States v. Giampa, 758
F.2d 928, 934-935 (3d Cir. 1985);  United States v. Ellison, 684 F.2d
664, 666, vacated, 722 F.2d 595 (10th Cir. 1982);  see also Pet. App.
A4;  United States v. Ember, 726 F.2d 522, 523-524 & n.4 (9th Cir.
1984) (ambiguous ruling in bench trial before prosecution had
completed presentation of its evidence held to be unappealable
acquittal).  Indeed, the rule creates a mechanism under which trial
judges can deliberately insulate from judicial review legal rulings
that would be reviewable if made at another time.  See Ellison, 684
F.2d at 666 (noting that in recent prior case court of appeals had
reversed post-verdict acquittal by same judge);  United States v.
Appawoo, 553 F.2d 1242, 1246-1247 (10th Cir. 1977) (judge informed
lawyer that he would be guilty of "poor legal representation" if he
made motion to dismiss before attachment of jeopardy because a
pre-jeopardy ruling could be appealed).

   While it may be necessary, because of the double jeopardy policies
identified above, to live with some miscarriages of justice when a
genuine acquittal is entered by the factfinder, there is no reason to
do so when the defendant himself voluntarily has chosen to terminate
the trial prematurely.  As the Court has noted in the mistrial
context, "it may be wondered as a matter of original inquiry why the
defendant's election to terminate the first trial by his own motion
should not be deemed a renunciation of that right (to have his trial
completed before the first factfinder) for all purposes." Oregon v.
Kennedy, 456 U.S. at 673.  In that context, there is a logical -- and
quite limited -- exception to this proposition when the mistrial is
intentionally provoked by the prosecution.  But here there simply is
no relevant double jeopardy interest to be protected that warrants an
exception.  The defendant has not been deprived of his valued right to
present his case to the first factfinder;  he has abandoned that right
for reasons that seem appropriate to him.  /12/ When the grounds for
the midtrial ruling in his favor turn out to be erroneous, there is no
reason to confer a windfall upon him instead of requiring him to
undergo one full trial.  A contrary rule "would create an insuperable
obstacle to the administration of justice in many cases in which there
is no semblance of the type of oppressive practices at which the
double-jeopardy prohibition is aimed." Wade v. Hunter, 336 U.S. at
688-689.

   b. We recognize that our submission above diverges from the
definitions of acquittal that this Court has put forth on several
occasions.  Even in Scott, whose analysis and holding strongly support
our position, the Court distinguished between the preindictment delay
ruling involved there, which was collateral to guilt or innocence, and
a ruling that plainly indicates that the trial court "'evaluated the
Government's evidence and determined that it was legally insufficient
to sustain a conviction'" (437 U.S. at 97, quoting United States v.
Martin Linen Supply Co., 430 U.S. 564, 572 (1977)).  If this
definition of acquittal is applied here, there is no doubt that the
appeal would be barred because the trial court's decision represented
a finding that the prosecution had failed to prove petitioners' guilt
on the offenses as to which the demurrers were sustained.

   It is our submission that this definition of acquittal is unduly
expansive and that the policies that support giving special weight to
acquittals extend only to determinations of not guilty by the
factfinder.  As a general rule, this more restrictive definition is
fully consistent with the holdings of the Court in those cases in
which the Court has indicated that a judicial determination of
insufficiency is an acquittal;  as in Scott, the statement that a
judicial finding of insufficiency is an "acquittal" is dictum.  For
example, in Tibbs v. Florida, 457 U.S. 31, 41 (1982), the Court stated
that a finding of not guilty by the trial judge "absolutely shields
the defendant from retrial" to the same extent as a jury acquittal.
Tibbs involved, however, the application of the rule of Burks v.
United States, 437 U.S. 1 (1978), which concerns the impact of a
legally valid finding of insufficiency on the state's ability to
conduct a retrial.  See also Richardson v. United States, No. 82-2113
(June 29, 1984), slip op. 9 n.5;  Hudson v. Louisiana, 450 U.S. 40
(1981).  Burks simply holds that the prosecution is not permitted a
second opportunity to prove its case when an appellate court has found
correctly that it has had one full and fair opportunity to do so and
has failed;  Burks does not suggest that an erroneous judicial finding
of not guilty is not subject to correction.  /13/ Indeed, the Court's
later discussion in Tibbs makes it clear that it was focusing on the
situation where the evidence was correctly held to be insufficient.
See 457 U.S. at 42.

   Moreover, the Court's statements on this point have not been
completely uniform.  In Arizona v. Rumsey, No. 83-226 (May 29, 1984),
slip op. 7, 8, the Court defined an acquittal that bars a retrial as
one made by the "sole decisionmaker," suggesting that a legal finding
of insufficiency by the judge in a jury trial would not be considered
an acquittal.  See also Tibbs v. Florida, 457 U.S. at 49 (White, J.,
dissenting) (suggesting that "acquittals" are entered by the
factfinder).  Indeed, the Court's statements regarding the special
status of acquittals have been read by one leading commentator to
apply only to jury verdicts of not guilty.  See Westen, supra, 78
Mich. L. Rev. at 1021-1023, 1034 n.99.  Be that as it may, we suggest
that the various dicta setting forth a more expansive definition of
acquittals should not foreclose consideration of a narrower definition
in this case, where the result may turn on the scope of that
definition.

   The idea that a judicial finding of insufficiency is not appealable
if it would necessitate a retrial is not grounded solely in dictum,
for there is one decision of this Court whose holding is inconsistent
with our submission here.  In United States v. Martin Linen Supply
Co., supra, the first trial of the defendants ended in a hung jury.
The court thereafter granted the defendants' timely filed Rule 29(c)
motion for a judgment of acquittal.  This Court held that this ruling
could not be appealed consistent with the Double Jeopardy Clause
because a retrial would be required, even though, in the absence of
the court's order, there would have been no bar to a second trial
following a hung jury.  The Court's decision rested on the premise
that a judicial finding of insufficient evidence, even if erroneous,
was entitled to the same special protection as an acquittal.  430 U.S.
at 572-575.  We submit that it is appropriate for the Court to
reconsider Martin Linen here.  /14/

   As noted above, there is no apparent reason why an erroneous legal
ruling on insufficiency should be treated differently from any other
legal error, and hence an order sustaining a demurrer ought to be
appealable under Scott.  It is clear that such a ruling is not
equivalent to an acquittal by the factfinder, else it would not be
appealable even when entered after verdict, and there is no apparent
reason why it should become unreviewable when it occurs during the
trial.  See generally Westen, supra, 78 Mich. L. Rev. at 1064 n. 221.
The opinion in Martin Linen does not address the reasons for equating
an acquittal by the judge with an acquittal by the jury, since it
speaks almost exclusively to the government's contention that a
retrial was permissible there because a mistrial had already been
declared due to a hung jury.  The Court simply assumed that a judicial
finding of insufficiency rendered in the middle of trial would be
unappealable, viewing that proposition as "necessarily concede(d)"
(430 U.S. at 574) by the government, /15/ and it devoted its
discussion to the question whether the appealability of such an order
should differ depending on whether it was issued before or after the
jury's deliberations.

   The Court need not recede from its conclusion that "judgments under
Rule 29 are to be treated uniformly" (430 U.S. at 575) in order to
reconsider its premise that they cannot be appealed if entered prior
to verdict.  In addition, the Court relied in part on its assertion
that "the judge's authority under Rule 29 is designed to provide
additional protection to a defendant by filtering out deficient
prosecutions" (430 U.S. at 575), and hence appealability ought not to
depend on timing.  Subsequent developments have shown that broad
application of this premise is unjustified, because it is now
established that a post-verdict grant of a Rule 29 motion is
appealable (see United States v. DiFrancesco, 449 U.S. at 130).  See
Cooper, Government Appeals in Criminal Cases:  The 1978 Decisions, 81
F.R.D. 539, 542 (1979).  In light of Scott's holding that an order
granting the defendant's motion for a midtrial termination in his
favor may be appealed, the logical force of the decision in Martin
Linen has been undermined and now rests only on a premise that has
never been fully considered by this Court.  See Westen & Drubel,
supra, 1978 Sup. Ct. Rev. at 132.  The Court should reaffirm this
premise only if it is satisfied that sound grounds exist for treating
an erroneous legal ruling of insufficiency differently from other
legal rulings erroneously terminating a trial in the defendant's
favor.

   While the Court has not until now had occasion to reexamine the
validity of the underlying premise of Martin Linen, one recent
decision casts some doubt upon it.  In Tibbs v. Florida, supra, the
trial court had ordered a new trial following conviction on the ground
that the guilty verdict was not supported by the "weight of the
evidence." This Court held that Burks did not bar a retrial in that
situation because the court's finding was not a finding that the
prosecution had failed to put on a case that could be credited by a
rational factfinder.  There is considerable tension between the
results of Tibbs and Martin Linen.  On the one hand, there is no bar
to a retrial where the trial court correctly concludes that a guilty
verdict is against the weight of the evidence;  on the other hand
retrial is barred when the trial court erroneously rules that the
evidence is insufficient.  Although it is difficult to compare these
two situations directly, it would appear to be the former that more
strongly suggests that retrial carries undue risk of wearing down and
convicting an innocent person.

   In Scott, this Court noted that its initial double jeopardy
decisions under the modern version of 18 U.S.C. 3731 were rendered
without benefit of the "lessons of experience" (437 U.S. at 101), and
consequently the Court overruled one of those early decisions in light
of the Court's "vastly increased exposure" (id. at 86) to the
ramifications of the application of the Double Jeopardy Clause to
government appeals.  Martin Linen does not fit comfortably within the
framework of current double jeopardy analysis (see Westen, supra, 78
Mich. L. Rev. at 1040 n.146), and the rule it contemplates -- giving
erroneous judicial findings of insufficiency the same special
protection accorded to acquittals by the factfinder -- is contrary to
the view of many respected commentators.  /16/ In our view, the
holding of Martin Linen is logically troublesome, and experience has
shown that it has a serious adverse effect on the administration of
justice.  We urge the Court to reconsider it.  /17/

 B. There Is No Double Jeopardy Bar To Appeal Of A Midtrial Judicial
Ruling Of Insufficiency If A Successful Appeal Would Simply Result In
A Resumption Of The First Trial

   Even if the Court rejects our argument in Point A and holds that a
defendant may not be subjected to a second trial following the entry
of an order terminating the first trial on the basis of a judicial
finding of insufficient evidence, the grant of the demurrer here is
nonetheless appealable because no retrial would be necessitated by a
reversal on appeal.  The trial court recessed the trial in this case
in order to await the outcome of the prosecution's appeal.  If the
appeal succeeds, the case will be remanded for resumption of the first
trial before the same factfinder, not for a second trial.  /18/ While
we acknowledge that there may be substantial problems in this
particular case with simply resuming the trial after the passage of so
much time, these are not double jeopardy problems, and they exist
equally with respect to the counts on which the demurrers were
rejected as to those on which they were upheld.  As far as the Double
Jeopardy Clause is concerned, and therefore as far as the issue before
this Court is concerned, this case is indistinguishable from United
States v. Ellison, supra, in which the government sought a writ of
mandamus while the trial was recessed over a weekend, in an effort to
compel the district court to vacate its order granting a Rule 29
motion.  Accordingly, while the issue of permissibility of midtrial
correction of an erroneous Rule 29 determination (or its state
equivalent) arises here in a peculiar posture, it is an important one
that could have broad implications for the administration of justice.
/19/

   In Ellison, at the close of the government's case in an
exceptionally important fraud prosecution, the trial court granted the
defendants' Rule 29 motions for judgments of acquittal with respect to
most of the charges pending against them, on grounds that the court of
appeals found difficult to understand.  Before the trial on the
remaining counts was resumed, a panel of the court of appeals, by a
2-1 vote, granted a writ of mandamus and set aside the trial court's
order, without rpejudice to reinstatement following verdict.  The
panel stated that there was no double jeopardy problem with this
action because no successive trials were involved, the jury having not
yet been discharged.  684 F.2d 664.  The next day, the en banc court
vacated the panel decision and held that resumption of the trial on
these counts would violate double jeopardy.  722 F.2d 595.  The
reasoning of the en banc court presumably was that expressed by Judge
McWilliams in his dissent from the panel opinion.  He concluded that
the reinstatement of the charges once the court had entered a judgment
of acquittal on insufficient evidence grounds was "a form of 'second
trial'" and therefore barred under Martin Linen.  684 F.2d at 667.
This conclusion does not withstand analysis.

   The Double Jeopardy Clause protects a defendant from being twice
placed in jeopardy for the same offense.  It is not apparent why a
single trial should violate this prohibition just because, during the
course of the trial, the trial court had erroneously ruled that the
evidence was insufficient and was promptly corrected by the appellate
court.  If the trial court entered such a ruling and then reconsidered
and vacated its order itself before the jury was discharged, it could
hardly be thought that the Double Jeopardy Clause would prevent the
trial from proceeding to its conclusion.  See Sanabria v. United
States, 437 U.S. 54, 59-60 (1978).  There is no reason why the
intervention of an appellate court should convert the continuation of
the trial into a second jeopardy.

   In Swisher v. Brady, 438 U.S. 204 (1978), the Court considered the
validity of a system of state juvenile court adjudications in which a
hearing is held before a master who makes findings and
recommendations.  This Court held that a reversal by a judge, upon
appeal by the state, of a master's finding of not guilty does not
violate the Double Jeopardy Clause.  The Court explained that the
appeal to the judge following a not guilty determination did not place
the defendant twice in jeopardy because it was all part of a single
proceeding.  Id. at 215.  The Court emphasized that the state
procedure at issue in Swisher did not impinge on the policies of the
Double Jeopardy Clause because it did not allow the prosecution a
"second crack" at supplying evidence that it failed to muster in the
first proceeding.  Id. at 215-216.  The permissibility of continuing
with a trial after an erroneous demurrer has been reversed follows a
fortiori from Swisher.  The defendant is subjected to only one trial
and the prosecution is given no opportunity to improve its case;  the
original trial simply proceeds to its conclusion.  Moreover, here,
unlike Swisher, there has not been any factual determination with
respect to guilt or innocence;  the function of the master in Swisher
was to make factual findings, but the presiding judge in this case was
simply making a ruling of law.

   The fact that the finding of evidentiary insufficiency was made
here by the trial court does not suggest a different result.  This
Court has already held in Serfass v. United States, 420 U.S. 377
(1975), that there is no bar to trial proceedings following an
"acquittal" entailing a judicial finding of insufficiency. There, the
trial court dismissed the indictment prior to trial because it found
from documents submitted prior to trial that one of the elements of
the offense could not be established.  While this ruling was
undoubtedly an "acquittal" in the same sense as the sustaining of the
demurrers here, the Court held that a trial following reversal on
appeal would not be barred because it would be a permissible first
jeopardy, not an impermissible second jeopardy.  The same is true
here;  the proceedings following a reversal of the grant of the
demurrers would be a continuation of the first jeopardy.

   It is no response to this analysis to maintain that the defendant
has some indefeasible right to the benefit of the court's ruling in
his favor concerning the sufficiency of the evidence.  It is well
established by now that a post-verdict judicial finding of
insufficiency may be reversed on appeal and a guilty verdict
reinstated.  /20/ If the defendant has no right to retain the benefit
of that ruling, he has no right to retain the benefit of the same
ruling made midtrial, if the trial can be resumed and results in a
valid guilty verdict by the factfinder.  In sum, the Double Jeopardy
Clause does not bar reversal of an erroneous midtrial judicial finding
of insufficient evidence as long as that error can be corrected before
the trial is terminated, and thus without placing the defendant in
jeopardy a second time.

                              CONCLUSION

   The petition for a writ of certiorari should be dismissed for lack
of jurisdiction.  Alternatively, the judgment of the Supreme Court of
Pennsylvania should be affirmed.

   Respectfully submitted.

   CHARLES FRIED

      Solicitor General

   STEPHEN S. TROTT

      Assistant Attorney General

   ANDREW L. FREY

      Deputy Solicitor General

   ALAN I. HOROWITZ

      Assistant to the Solicitor General

   FEBRUARY 1986

   /1/ This case does not have any of the characteristics that caused
four Justices to dissent from the jurisdictional holding in Flynt.
Those Justices believed that the conduct of the trial would itself
violate the Constitution if Flynt's claim of impermissible selective
prosecution to chill First Amendment rights were meritorious.  See 451
U.S. at 623-624.  Here, there can be no suggestion that consideration
of the Commonwealth's appeal could itself violate federal rights of
any kind.

   /2/ If this were a federal case, the lack of finality would not
present a jurisdictional bar to review by certiorari under 28 U.S.C.
1254(1).  Nonetheless, prudential considerations ordinarily would lead
the Court to decline review of a case in this interlocutory posture.
See Brotherhood of Locomotive Firemen & Enginemen v. Bangor &
Aroostook R.R., 389 U.S. 327 (1967).

   /3/ We do not speak here of paradigmatic acquittals, viz., verdicts
of not guilty returned by the factfinder on the basis of the
application of the law to the facts found upon consideration of the
evidence.  Even then, there is much to commend Justice Cardozo's
sentiment that it is more just to allow a retrial when the original
verdict is tainted by material legal error than to prohibit review and
correction.  Palko v. Connecticut, 302 U.S. 319, 328 (1937).  But at
least in those cases it is possible that the verdict was actually the
product of a factual determination that the prosecution had failed to
establish guilt.  In a case in which a judge enters a pre-verdict
"acquittal" (or, as here, withholds factfinding in a bench trial in
order to rule on purely legal grounds), on the other hand, there has
been no such factual determination, only a legal ruling.  When that
ruling is found to be legally erroneous, we can be certain that there
has as yet been no failure by the prosecution to demonstrate guilt by
legally sufficient evidence -- and therefore no legally tenable basis
for holding the proceedings to have produced an unreviewable
acquittal.

   /4/ The decision in Kepner involved a peculiar procedure in the
Philippines that essentially contemplated a trial de novo on appeal
following the entry of a verdict of acquittal in a bench trial.  In
addition, the case technically did not involve the Double Jeopardy
Clause, but rather a federal statute applying double jeopardy
principles to the Philippines.  See Wilson, 420 U.S. at 346 & n.15.

   /5/ Indeed, the rule introduces a genuine anomaly into the criminal
justice system.  If a defendant is tried and, following a trial error
committed at the behest of the prosecution (such as an erroneous
instruction), is convicted, the Double Jeopardy Clause does not
protect him from being subjected to a second trial following a
successful appeal.  United States v. Tateo, 377 U.S. 463, 465-466
(1964);  United States v. Ball, 163 U.S. 662 (1896).  This is so even
though the tainted first trial cannot be said to have impaired the
presumption of innocence and the error at the trial was not the fault
of the defendant.  On the other hand, a defendant who is acquitted
because of a trial error can never be retried.  This is so even though
the tainted trial does not indicate that the prosecution cannot prove
the defendant's guilt in a fair trial and even though the error at
trial may have been and probably was made at the behest of the
defendant.  Thus, the defendant who is less "blame-worthy" with
respect to the defect in the original trial may be subjected to the
ordeal of a second trial, although there is no objective basis for
concluding that he is any more likely to be guilty than the defendant
who has been acquitted at a trial that he managed to infect with
error.  See generally Westen, The Three Faces of Double Jeopardy:
Reflections on Government Appeals of Criminal Sentences, 78 Mich. L.
Rev. 1001, 1009, 1011-1012 (1980).

   /6/ The anomalous results that can be occasioned by this rule are
illustrated by a case presently before this Court involving the
application of the Double Jeopardy Clause to capital sentencing
hearings.  In Poland v. Arizona, cert. granted, No. 85-5023 (Oct. 7,
1985), the defendants were charged in a trial-type sentencing hearing
with being subject to the death penalty under two distinct theories --
murder committed "in expectation of the receipt of anything of
pecuniary value" or murder committed in an "especially heinous, cruel
or depraved manner." At the hearing, the defendants were found subject
to the death penalty on the ground that the murder was committed in a
cruel manner, but the judge held that, as a matter of law, the
defendants could not be found guilty under the pecuniary gain theory
because he believed that the statute applied only to murders-for-hire.
 The death sentence was vacated on appeal on the ground that there was
insufficient evidence to show that the murders were committed in a
cruel or depraved manner.  In the interim, however, the Supreme Court
of Arizona had made clear that the trial court's original
interpretation of the statute was erroneous and that the pecuniary
gain provision did cover murder in the course of a robbery, which was
what was involved in Poland.  On appeal from the entry of a death
sentence again on remand, the Arizona Supreme Court held that the
Double Jeopardy Clause did not bar the imposition of the death penalty
on the pecuniary gain theory.  144 Ariz. 388, 404, 698 P.2d 183,
198-199 (1985).

   We are aware of nothing in existing double jeopardy principles that
would support any different conclusion.  The defendants' first
sentencing hearing resulted in a death sentence (i.e., a
"conviction"), and therefore there was no bar to a second proceeding
on remand.  And the State had put forth the pecuniary gain theory at
the first proceeding and had adduced sufficient evidence at that
hearing to justify imposition of the death penalty.  Since there was
no failure of proof, and an "acquittal" (i.e., denial of the request
for the death penalty) neither was nor should have been entered at the
first sentencing proceeding, the principles of Burks v. United States,
437 U.S. 1 (1978), have no application.

   The correct result in Poland does seem anomalous, however, when
compared with Arizona v. Rumsey, No. 83-226 (May 29, 1984).  In
Rumsey, the State sought the death penalty only on the pecuniary gain
theory, and it was rejected by the trial court, hearing the case
without a jury, on the basis of the same erroneous interpretation of
the statute made in Poland.  In Rumsey, however, this Court held that
the Double Jeopardy Clause prevented Rumsey from being subjected to a
second sentencing proceeding in which the statute would be correctly
applied because he had been "acquitted" at the first proceeding.  See
slip op. 7-8. The only difference between Poland and Rumsey is that
the defendants in Poland had been "convicted" at their first
sentencing proceeding (on an erroneous theory) and Rumsey had been
erroneously "acquitted." See Justices of Boston Municipal Court v.
Lydon, 466 U.S. 294, 307 (1984) ("The conceptual difficulty for Lydon
is that he has not been acquitted.").  Logically, this fact does not
suggest that they should be treated differently with respect to
whether they can be subjected to a second sentencing hearing;  why
should the Poland defendants be worse off because they were charged
and convicted on an erroneous theory?

   The answer is that while logic and policy call for the two cases to
be treated the same, Rumsey involves the special rule for acquittals,
which may insulate defendants in cases where logic does not suggest
that they are being treated unfairly.  Because the defendants in both
cases were guilty of committing murder for pecuniary gain -- and the
State proved that at the first proceeding in both cases -- there would
appear to be nothing unfair or unconstitutional in subjecting the
defendants in both cases to the death penalty on the basis of the
pecuniary gain theory;  that would have been the result at the first
proceeding but for the legal error in the defendants' favor.  The
different result in these two cases amounts to a windfall for Rumsey,
and it is solely attributable to the special, somewhat anomalous,
treatment that has been accorded acquittals under the Double Jeopardy
Clause.

   /7/ We suggest that such an analysis proves too much, since it is
equally applicable to retrials of defendants whose convictions at
their first trials were infected by prejudicial error -- a practice of
undoubted validity.

   /8/ Professor Westen's jury nullification rationale seems to us
subject to much the same criticism he directs at other rationales,
viz., that the decision to nullify (if that is indeed what underlay
the verdict) is also likely to have been tainted by any errors the
court made in excluding prosecution evidence or misinstructing the
jury on material points of law.

   /9/ It is not material to this argument that this case involves a
bench trial, so that the ruling sustaining the demurrers in fact was
entered by the entity also responsible to act as factfinder.  A
demurrer is a motion addressed to the presiding court attacking the
legal sufficiency of the evidence.  None of the courts below have
doubted that the court here did not act in its capacity as a
factfinder, but rather entered a legal ruling.  Indeed, the trial
judge clearly viewed his ruling as purely a legal determination, since
he stayed the trial in order to permit the appeal;  if the judge had
intended to acquit the defendants in his capacity as factfinder (and
under state law he had no authority to do that at the close of the
prosecution's case), he would not have recognized the Commonwealth's
right to appeal.  Therefore, for double jeopardy purposes, the
question of the appealability of the order sustaining the demurrers in
this case is the same as if this were a jury trial.

   /10/ Like the rule giving special finality to acquittals, this rule
carries with it the potential cost that guilty defendants will go free
despite the absence of any error attributable to the prosecution.
See, e.g., United States v. Jorn, 400 U.S. 470 (1971);  United States
v. Sartori, 730 F.2d 973 (4th Cir. 1984) (mistrial declared because of
trial judge's decision to rescuse himself because of strong personal
reaction to evidence of defendant's misdeeds held not based on
"manifest necessity" and hence retrial barred).  In these
circumstances, the defendant's double jeopardy interest in a complete
first trial is deemed to outweigh society's interest in bringing the
guilty to justice.

   /11/ A trial may not be terminated prematurely in favor of the
prosecution.  See United States v. Martin Linen Supply Co., 430 U.S.
564, 572 (1977);  Sparf & Hansen v. United States, 156 U.S. 51, 105
(1895).

   /12/ We do not suggest that the defendant should be precluded from
seeking a midtrial termination on grounds of evidentiary
insufficiency.  He may have good reasons for doing so and should not
be forced to continue with a trial that may be unnecessary.  But when
a defendant seeks and obtains such relief it is not unreasonable to
hold that he has assumed the risk of a retrial if it turns out that he
was not entitled to prevail.  See Scott, 437 U.S. at 100 n.13.  We
reiterate that, under the rule we propose, the defendant runs no risk
of retrial by seeking any relief in the middle of trial unless in fact
he is not entitled to that relief.

   /13/ We emphasize that the rule that we propose here is fully
consistent with Burks.  When either the trial court or the appellate
court has correctly held the evidence insufficient at the first trial,
res judicata aspects of double jeopardy bar the prosecution from a
second bite at the apple.  But when the trial court, at the
defendant's behest, has made an erroneous determination of
insufficiency, there is no reason to deny the prosecution one
opportunity to prove its case.

   /14/ We do not regard either Sanabria v. United States, 437 U.S. 54
(1978), or Fong Foo v. United States, 369 U.S. 141 (1962), on which
the Court in Martin Linen relied heavily (see 430 U.S. at 573-574), as
inconsistent with the rule we propose here.  In Sanabria, the trial
court had rejected one of the two theories under which the prosecution
was proceeding and suppressed all evidence pertaining to that theory;
that done, it correctly concluded that the remaining evidence was
insufficient to convict Sanabria of the charged offense.  Because of a
statutory bar to review of the ruling suppressing all the evidence
against Sanabria, no appeal was taken, and the judgment in his favor
became res judicata.  The issue in Sanabria was whether the government
could reindict and retry Sanabria when an intervening decision of the
court of appeals showed that the court had erred in rejecting the
theory that had been the basis of the first prosecution.  The answer
to this question turned on an assessment of the scope of the order
entered by the trial court, and this Court concluded that Sanabria
could not be retried because he had already been acquitted of the
"same offense." In the course of its discussion, the Court noted that
the insufficiency ruling on the first theory was "unreviewable" (437
U.S. at 64).  That statement is inconsistent with the position we take
here, but it was not made in connection with an issue that was before
the court. The government never sought to retry Sanabria on the first
theory, and the question whether the court's ruling could be appealed
never was raised.  For a detailed discussion of Sanabria, see Westen &
Drubel, supra, 1978 Sup. Ct. Rev. at 163-168.

   In Fong Foo, the district court entered what it termed a "judgment
of acquittal" after the prosecution had put on three witnesses, but
well before the prosecution had begun to introduce the major elements
of its case.  This order, which the court of appeals' opinion
indicates was prompted largely by what the trial court viewed as
government misconduct (see In re United States, 286 F.2d 556, 559-560
(1st Cir. 1961)) cannot be deemed an acquittal within the meaning of
Scott and Martin Linen.  The court could not possibly have made an
assessment of the defendants' "factual guilt or innocence" because the
prosecution had barely begun to put on its case.  Compare Serfass v.
United States, 420 U.S. 377, 389 (1975).  The Court's decision in Fong
Foo reflects the view later set forth more explicitly in Jenkins
(which also relied on Fong Foo, see 420 U.S. at 369;  id. at 370
(Douglas, J., concurring)) that, except in highly unusual
circumstances, any midtrial termination in the defendant's favor bars
an appeal that would result in a retrial.  Thus, whatever vitality the
oft-quoted statement in Fong Foo regarding the special treatment
accorded to genuine verdicts of acquittal retains, its holding, like
Jenkins, cannot survive Scott.

   /15/ We find no such concession in the government's brief (see
Brief for the United States, No. 76-120, at 12-19), but what is
relevant for present purposes is that the Court found no occasion to
consider the arguments on the point.

   /16/ See Westen, supra, 78 Mich. L. Rev. at 1005-1023, 1040-1042,
1064-1065;  Cooper, Government Appeals in Criminal Cases:  The 1978
Decisions, 81 F.R.D. 539, 555 (1979);  M. Friedland, Double Jeopardy
310 (1969);  J. Sigler, Double Jeopardy 114-115 (1969);  Mayers &
Yarbrough, Bis Vexari:  New Trials and Successive Prosecutions, 74
Harv. L. Rev. 1 (1960).

   /17/ Should the Court adhere to the view of Martin Linen that at
least some judicial rulings of evidentiary insufficiency ought to be
treated like acquittals by the factfinder for double jeopardy
purposes, we note that a clarification of the definition of
"acquittal" would be most desirable.  In order for a judicial ruling
to be treated as a double jeopardy acquittal, it should at a minimum
reflect a finding by the court that, as a factual matter, the
prosecution failed to prove its case.  There are cases, however, where
the granting of a Rule 29 motion does not in fact reflect any such
finding, but rather is based on a legal error collateral to the
sufficiency of the evidence.

   Rule 29 acquittals or demurrers can fall into one of three basic
categories.  First, where the court concludes, based on a correct view
of the law, that the evidence viewed in the light most favorable to
the government is insufficient, it has ruled on a mixed question of
law and fact that bears some resemblance to a jury acquittal (though
the court's conclusion can still be legally erroneous).  Second, where
a court enters an "acquittal" on grounds of insufficiency because it
disbelieves part of the prosecution's evidence, it has committed a
serious legal error in exceeding the scope of its power.  Even there,
however, the court's error represents a judgment about the strength of
the prosecution's case, albeit under an incorrect standard of review.
Third, the court's ruling may be grounded in a misinterpretation of
the governing law and therefore not in any way represent a judgment
that the evidence is insufficient under a correct view of the law.

   The most glaring instance of the latter category is where the court
misapprehends the elements of the charged offense and therefore holds
the evidence insufficient because the prosecution failed to prove a
nonexistent element.  For example, prosecutions have been lost because
the trial court erroneously believed that the prosecution was required
to prove that the defendant personally prepared false tax returns in
order to convict him of procuring the filing of false returns in
violation of 26 U.S.C. 7206(2) (see United States v. Head, 697 F.2d
1200, 1208 & n.13 (4th Cir. 1982), cert. denied, 462 U.S. 1132 (1983))
or because the trial court erroneously believed that a violation of 18
U.S.C. 922(h) could not be shown if the firearm was no longer moving
in commerce at the time of receipt (see United States v. Medeiros, No.
80-1399 (D. Hawaii Apr. 23, 1981);  cf. Barrett v. United States, 423
U.S. 212 (1976)).  See also Finch v. United States, 433 U.S. 676
(1977).  Or the court may, as in Sanabria, erroneously suppress
evidence crucial to the prosecution's case and then find the remaining
evidence insufficient.  See United States v. Fay, 553 F.2d 1247 (10th
Cir. 1977).

   It is not clear whether such rulings are appealable under present
law.  On the one hand, these rulings appear to fall within one of the
Martin Linen/Scott definitions of an acquittal (see page 19, supra)
because the court ultimately resolves the case on the basis of a
conclusion that guilt has not been established by the evidence.  On
the other hand, they arguably do not meet another of the definitions
because the court has not truly resolved in the defendant's favor
"'some or all of the factual elements of the offense charged'" (Scott,
437 U.S. at 97, quoting Martin Linen, 430 U.S. at 571).  What we
believe is clear is that there is no conceivable justification for
treating such rulings as acquittals for double jeopardy purposes.
Certainly when neither the factfinder nor the court has concluded
that, under a proper view of the law, the prosecution has failed to
prove its case, it is inappropriate to apply the special protection
accorded to acquittals to insulate the court's error from appellate
review.  The principles of Scott plainly justify an appeal in that
situation (as long as the midtrial termination is at the defendant's
behest), and the definition of "acquittal" ought to be clarified
accordingly.

   /18/ Even if the trial had not been formally recessed, it is
arguable that the proceedings required on remand should be considered
a resumption of the first trial, rather than a second trial, since
this is a bench trial and the proceedings would take place before the
same factfinder who participated in the earlier proceedings.  Cf.
Jenkins, 420 U.S. at 368-370 (rejecting this argument), overruled,
Scott, 437 U.S. at 87, 101.  Because there is no doubt here that the
first trial has been continued, however, this issue is not presented
in this case.

   /19/ If there is no double jeopardy bar to the correction of an
erroneous granting of a Rule 29 motion while the trial is still in
progress, the legislature can decide whether to take steps to
facilitate such corrections.  For example, if Congress decides that
the problem is sufficiently important, it could amend Rule 29 to allow
for expedited review of insufficiency rulings.  Alternatively, it
could allow for limited review on an expedited basis of such orders
with the court of appeals' function restricted to deciding whether
there is sufficient doubt about the correctness of the trial court's
termination of the trial to warrant ordering the completion of the
trial and postponement of the trial court's Rule 29 ruling until after
verdict -- the course of action that this Court has identified as
preferable in most cases.  See Scott, 437 U.S. at 100 n.13;  United
States v. Ceccolini, 435 U.S. 268, 271 (1978).  On the other hand, if
there is a constitutional bar to such review, the legislature's
latitude for action is more limited.  It is conceivable that if it is
unwilling to live with a significant number of erroneous midtrial
terminations, thus allowing some guilty defendants to go free, the
legislature might decide to eliminate entirely the defendant's right
to seek a midtrial termination, although the defendant has a
legitimate interest in such relief in many cases (see Scott, 437 U.S.
at 100 n.13).

   /20/ In addition to this Court's statement in DiFrancesco, 449 U.S.
at 130, and the unanimous court of appeals' decisions cited above (see
page 12, supra), we note that this Court's decision in Wilson plainly
stands for this proposition.  In Wilson, this Court approved the
reversal on appeal of a post-verdict resolution in the defendant's
favor on preindictment delay grounds.  It is now clear in light of
Scott that the order in Wilson was not an "acquittal," but the Court
in Wilson expressly states that it was unnecessary to decide there
whether the order was an "acquittal" or not (420 U.S. at 336).  Thus,
Wilson stands for the proposition that a post-guilty-verdict acquittal
is appealable.