We granted certiorari to determine whether a pretrial order denying a motion to dismiss an indictment on double jeopardy grounds is a final decision within the meaning of 28 U. S. C. § 1291,
In March 1974, a single-count indictment was returned in the United States District Court for the Eastern District of Pennsylvania charging petitioners, Donald Abney, Larry Starks, and Alonzo Robinson, and two others, with conspiracy and an attempt to obstruct interstate commerce by means of extortion, in violation of the Hobbs Act, 18 U. S. C. § 1951.
Both prior to, and during, the ensuing trial, the petitioners challenged the indictment on grounds of duplicity of offenses, claiming that its single count improperly charged both a conspiracy and an attempt to violate the Hobbs Act. Although the District Court apparently agreed with this contention, it refused either to dismiss the indictment or require the prosecutor to elect between theories. Rather, it required the Government to establish both offenses, as the prosecutor represented that he would do, and instructed the jury to that effect:
On appeal, the United States Court of Appeals for the Third Circuit reversed petitioners' convictions and ordered a new trial on the ground that the key tape recording had been admitted into evidence without proper authentication. United States v. Starks, 515 F.2d 112 (1975). The Court of Appeals also agreed with the petitioners' claim that the indictment was duplicitous. Id., at 115-118. However, since the admission of the unauthenticated tape recording necessitated a new trial in any event, the court found it unnecessary to pass on the Government's argument that the indictment's duplicitous nature had been corrected by the trial court's instructions to the jury and was thus harmless. Id., at 118. Nonetheless, it directed the Government to elect between the conspiracy and attempt charges on remand in order to avoid any similar problems at the next trial. Id., at 118, 125.
On remand, the Government elected to proceed on the conspiracy charge. Petitioners then moved to dismiss the indictment, arguing: (a) that retrial would expose them to double jeopardy; and (b) that the indictment, as modified by the election, failed to charge an offense. The District Court denied the motion, and the petitioners immediately appealed to the Court of Appeals.
Before addressing the merits of petitioners' claims, the Government challenged the Court of Appeals' jurisdiction to hear the interlocutory appeal and asked that its prior decision in United States v. DiSilvio, 520 F.2d 247 (1975), be overruled; there the court had held that the denial of a pretrial motion to dismiss an indictment on double jeopardy grounds constituted a final decision within the meaning of 28 U. S. C. § 1291, and, as such, was immediately appealable. 520 F. 2d, at 248 n. 2a. The Court of Appeals failed to address the Government's argument. Rather, after ordering the case to
We approach the threshold appealability question with two principles in mind. First, it is well settled that there is no constitutional right to an appeal. McKane v. Durston, 153 U.S. 684 (1894). Indeed, for a century after this Court was established, no appeal as of right existed in criminal cases, and, as a result, appellate review of criminal convictions was rarely allowed.
The right of appeal, as we presently know it in criminal cases, is purely a creature of statute; in order to exercise that statutory right of appeal one must come within the terms of the applicable statute—in this case, 28 U. S. C. § 1291.
Second, since appeals of right have been authorized by Congress in criminal cases, as in civil cases, there has been a firm congressional policy against interlocutory or "piecemeal" appeals and courts have consistently given effect to that policy. Finality of judgment has been required as a predicate for federal appellate jurisdiction.
Accord, Cobbledick v. United States, 309 U.S. 323, 324-326 (1940). This principle is currently embodied in 28 U. S. C. § 1291 which grants the federal courts of appeals jurisdiction to review "all final decisions of the district courts," both civil and criminal. Adherence to this rule of finality has been particularly stringent in criminal prosecutions because "the delays and disruptions attendant upon intermediate appeal," which the rule is designed to avoid, "are especially inimical to the effective and fair administration of the criminal law." DiBella, supra, at 126. Accord, Cobbledick, supra, at 324-326.
The pretrial denial of a motion to dismiss an indictment on double jeopardy grounds is obviously not "final" in the sense that it terminates the criminal proceedings in the district court. Nonetheless, a number of the Courts of Appeals have held that § 1291 does not bar an immediate appeal from such a pretrial order. United States v. Barket, 530 F.2d 181 (CA8 1975), cert. denied, 429 U.S. 917 (1976); United States v. Beckerman, 516 F.2d 905 (CA2 1975); United States v. Lansdown, 460 F.2d 164 (CA4 1972). Contra, United States v. Young, 544 F.2d 415 (CA9 1976); United States v. Bailey, 512 F.2d 833 (CA5 1975). In reaching this conclusion, those courts have taken the position that such pretrial orders fall within the so-called "collateral order" exception to the final-judgment rule first announced in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949), and are thus "final decisions" within the meaning of § 1291.
Cohen was a shareholder's derivative civil action in which federal jurisdiction rested on the diverse citizenship of the parties. Prior to trial, a question arose over whether a state statute requiring the plaintiff shareholder to post security for the costs of litigation applied in the federal court. After the District Court denied its motion to require such security, the
In holding that the pretrial order was a "final decision" for purposes of § 1291, the Court recognized that § 1291 did not uniformly limit appellate jurisdiction to "those final judgments which terminate an action." 337 U. S., at 545; Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 171 (1974). Rather as Mr. Justice Jackson, the author of Cohen, later pointed out:
That term, the Court held, was to be given a "practical rather than a technical construction." Cohen, supra, at 546. In giving it such a construction, the Court identified several factors which, in its view, rendered the District Court's order a "final decision" within the statute's meaning. First, the District Court's order had fully disposed of the question of the state security statute's applicability in federal court; in no sense, did it leave the matter "open, unfinished or inconclusive." Ibid. Second, the decision was not simply a "step toward final disposition of the merits of the case [which would] be merged in final judgment"; rather, it resolved an issue completely collateral to the cause of action asserted. Ibid. Finally, the decision had involved an important right which would be "lost, probably irreparably," if review had to await final judgment; hence, to be effective, appellate review in that special, limited setting had to be immediate. Ibid. The Court concluded:
Although it is true that a pretrial order denying a motion to dismiss an indictment on double jeopardy grounds lacks the finality traditionally considered indispensable to appellate review, we conclude that such orders fall within the "small class of cases" that Cohen has placed beyond the confines of the final-judgment rule.
Moreover, the very nature of a double jeopardy claim is such that it is collateral to, and separable from, the principal issue at the accused's impending criminal trial, i. e., whether or not the accused is guilty of the offense charged. In arguing that the Double Jeopardy Clause of the Fifth Amendment bars his prosecution, the defendant makes no challenge whatsoever to the merits of the charge against him. Nor does he seek suppression of evidence which the Government plans to use in obtaining a conviction. See DiBella v. United States, supra; Cogen v. United States, 278 U.S. 221 (1929). Rather, he is contesting the very authority of the Government to hale him into court to face trial on the charge against him. Menna v.
Accord, Turner v. Arkansas, 407 U.S. 366 (1972); Colombo v. New York, 405 U.S. 9 (1972). Thus, the matters embraced in the trial court's pretrial order here are truly collateral to the criminal prosecution itself in the sense that they will not "affect, or . . . be affected by, decision of the merits of this case." Cohen, 337 U. S., at 546.
Finally, the rights conferred on a criminal accused by the Double Jeopardy Clause would be significantly undermined if appellate review of double jeopardy claims were postponed until after conviction and sentence. To be sure, the Double Jeopardy Clause protects an individual against being twice convicted for the same crime, and that aspect of the right can be fully vindicated on an appeal following final judgment, as the Government suggests. However, this Court has long recognized that the Double Jeopardy Clause protects an individual against more than being subjected to double punishments.
See also United States v. Jorn, 400 U.S. 470, 479 (1971); Green v. United States, 355 U.S. 184, 187-188 (1957); United States v. Ball, 163 U.S. 662, 669 (1896). Because of this focus on the "risk" of conviction, the guarantee against double jeopardy assures an individual that, among other things, he will not be forced, with certain exceptions, to endure the personal strain, public embarrassment, and expense of a criminal trial more than once for the same offense. It thus protects interests wholly unrelated to the propriety of any subsequent conviction. Mr. Justice Black aptly described the purpose of the Clause:
Accord, Breed v. Jones, 421 U.S. 519, 529-530 (1975); Serfass v. United States, 420 U.S. 377, 387-388 (1975); Jorn, supra, at 479. Obviously, these aspects of the guarantee's protections would be lost if the accused were forced to "run the gauntlet" a second time before an appeal could be taken; even if the accused is acquitted, or, if convicted, has his conviction ultimately reversed on double jeopardy grounds, he has still been forced to endure a trial that the Double Jeopardy Clause was designed to prohibit.
We therefore hold that pretrial orders rejecting claims of former jeopardy, such as that presently before us, constitute "final decisions" and thus satisfy the jurisdictional prerequisites of § 1291.
In determining that the courts of appeals may exercise jurisdiction over an appeal from a pretrial order denying a motion to dismiss an indictment on double jeopardy grounds,
Here, we think it clear that the District Court's rejection of petitioners' challenge to the sufficiency of the indictment does not come within the Cohen exception. First, an order denying a motion to dismiss an indictment for failure to state an offense is plainly not "collateral" in any sense of that term; rather it goes to the very heart of the issues to be resolved at the upcoming trial. Secondly, the issue resolved adversely to petitioners is such that it may be reviewed effectively, and, if necessary, corrected if and when a final judgment results. We therefore conclude that the Court of Appeals had no jurisdiction under § 1291 to pass on the merits of petitioners' challenge to the sufficiency of the indictment at this juncture in the proceedings.
We turn finally to the merits of petitioners' claim that their retrial, following the prosecutor's election to proceed on the single conspiracy charge, is barred by the Double Jeopardy
Whatever the merits of such an argument in another setting, we find no factual predicate for it here.
Accordingly, the judgment of the Court of Appeals is affirmed in part, reversed in part, and remanded.
It is so ordered.
MR. JUSTICE WHITE concurs in the judgment.
"The courts of appeals shall have jurisdiction of appeals from all final decisions of the district courts of the United States, the United States District Court for the District of the Canal Zone, the District Court of Guam, and the District Court of the Virgin Islands, except where a direct review may be had in the Supreme Court."
"Whoever . . . obstructs, delays, or affects commerce . . . by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined not more than $10,000 or imprisoned not more than twenty years, or both."
"Final judgments or decrees rendered by the highest court of a State in which a decision could be had, may be reviewed by the Supreme Court . . . ."
"The common law not only prohibited a second punishment for the same offence, but it went further and [forbade] a second trial for the same offence, whether the accused had suffered punishment or not, and whether in the former trial he had been acquitted or convicted." (Emphasis added.)
"[T]he defendants are charged not with the so-called substantive offense itself but rather with a conspiracy and attempt to obstruct, delay and affect interstate commerce by extortion. If the jury should find beyond a reasonable doubt that there was a conspiracy and an attempt to extort money from Mr. Rice, the natural and probable consequences of which conspiracy and attempt, if successfully carried out, would be to obstruct, delay and adversely affect interstate commerce in any way or degree, the offense charged in the indictment of conspiracy and attempt would be complete, and the jury could properly convict all defendants found beyond a reasonable doubt to be members of the conspiracy and attempt." Tr. 10-25.
"[I]t becomes necessary for me to define both `conspiracy' and `attempt,' since the defendants are charged not with the substantive offense itself of obstructing, delaying or adversely affecting interstate commerce by extortion but rather a conspiracy and attempt so to do.
"Therefore, I shall define to you all of the requisites of both a conspiracy and an attempt, because all of these requisites must be found before the jury could find any defendant guilty." Id., at 10-25—10-26.
"In this case the defendants are charged with a conspiracy and attempt, both as integral and essential parts of the single charge." Id., at 10-35.
"[T]his charge being a single conspiracy and attempt to obstruct, delay and adversely or harmfully affect interstate commerce by extortion does not require proof that the conspiracy was successful, or that its unlawful objectives were obtained. The offense charged may be proved even though the conspiracy and attempt failed because the extortion was not successfully carried out." Id., at 10-39.