UNITED STATES v. MARTIN LINEN SUPPLY CO.

MR. JUSTICE BRENNAN delivered the opinion of the Court.

A "hopelessly deadlocked" jury was discharged when unable to agree upon a verdict at the criminal contempt trial of respondent corporations in the District Court for the Western District of Texas.1 Federal Rule Crim. Proc. 29 (c) provides that in such case "a motion for judgment of acquittal may be made . . . within 7 days after the jury is discharged [and] the court may enter judgment of acquittal. . . ."2 Timely motions for judgments of acquittal under the Rule made by respondents six days after the discharge of the jury resulted two months later in the entry by the District Court of judgments of acquittal.3 The sole question presented for our decision is whether these judgments of acquittal under Rule 29 (c) are appealable by the United States pursuant to 18 U. S. C. § 3731. Section 3731 provides that an appeal by the United States in a criminal case "shall lie to a court of appeals from a . . . judgment . . . of a district court dismissing an indictment . . . , except that no appeal shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution."4 The Court of Appeals for the Fifth Circuit held that no appeal lay under § 3731 from the judgments of acquittal entered by the District Court under Rule 29 (c). 534 F.2d 585 (1976). The Court of Appeals reasoned that, since reversal of the acquittals would enable the United States to try respondents a second time, the bar of the Double Jeopardy Clause "leads inescapably to the conclusion that no appeal lies from the directed verdict ordered by the court below." Id., at 589.5 We granted certiorari. 429 U.S. 917 (1976). We affirm.

I

It has long been established that the United States cannot appeal in a criminal case without express congressional authorization. United States v. Wilson, 420 U.S. 332, 336 (1975); United States v. Sanges, 144 U.S. 310 (1892). Only two Terms ago Wilson traced the uneven course of such statutory authority until 1970 when Congress amended the Criminal Appeals Act, 420 U. S., at 336-339, and that history need not be repeated here. See also United States v. Sisson, 399 U.S. 267, 307-308 (1970). It suffices for present purposes that this Court in Wilson found that in enacting § 3731 as Title III of the Omnibus Crime Control Act of 1970, 84 Stat. 1890, "Congress intended to remove all statutory barriers to Government appeals and to allow appeals whenever the Constitution would permit." 420 U. S., at 337. Therefore, unless barred by the Double Jeopardy Clause of the Constitution, appeals by the Government from the judgments of acquittal entered by the District Court under Rule 29 (c) are authorized by § 3731.

Consideration of the reach of the constitutional limitations inhibiting governmental appeals was largely unnecessary during the prior regime of statutory restrictions. But see Fong Foo v. United States, 369 U.S. 141 (1962); Kepner v. United States, 195 U.S. 100 (1904). However, now that Congress has removed the statutory limitations to appeal and the relevant inquiry turns on the reach of the Double Jeopardy Clause itself, it has become "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." United States v. Wilson, supra, at 339. In the few cases decided since 1970 that have taken this "closer look," many of the policies shaping restrictions on governmental appeal rights have been brought into sharper focus.

"The development of the Double Jeopardy Clause from its common-law origins . . . 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." Id., at 342. Thus Wilson held that the "controlling constitutional principle" focuses on prohibitions against multiple trials. Id., at 346. At the heart of this policy is the concern that permitting the sovereign freely to subject the citizen to a second trial for the same offense would arm Government with a potent instrument of oppression. The Clause, therefore, guarantees that the State shall not be permitted to make repeated attempts to convict the accused, "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); see also Downum v. United States, 372 U.S. 734, 736 (1963). "[S]ociety's awareness of the heavy personal strain which a criminal trial represents for the individual defendant is manifested in the willingness to limit the Government to a single criminal proceeding to vindicate its very vital interest in enforcement of criminal laws." United States v. Jorn, 400 U.S. 470, 479 (1971) (Harlan, J.).6

In animating this prohibition against multiple prosecutions, the Double Jeopardy Clause rests upon two threshold conditions. The protections afforded by the Clause are implicated only when the accused has actually been placed in jeopardy. Serfass v. United States, 420 U.S. 377 (1975). This state of jeopardy attaches when a jury is empaneled and sworn, or, in a bench trial, when the judge begins to receive evidence. Illinois v. Somerville, 410 U.S. 458, 471 (1973) (WHITE, J., dissenting); Downum v. United States, supra. Further, where a Government appeal presents no threat of successive prosecutions, the Double Jeopardy Clause is not offended. Thus a postverdict dismissal of an indictment after a jury rendered a guilty verdict has been held to be appealable by the United States because restoration of the guilty verdict, and not a new trial, would necessarily result if the Government prevailed. United States v. Wilson, supra.7

II

None of the considerations favoring appealability is present in the case of a Government appeal from the District Court's judgments of acquittal under Rule 29 (c) where the jury failed to agree on a verdict. The normal policy granting the Government the right to retry a defendant after a mistrial that does not determine the outcome of a trial, United States v. Perez, 9 Wheat. 579, 580 (1824), is not applicable since valid judgments of acquittal were entered on the express authority of, and strictly in compliance with, Rule 29 (c). Those judgments, according to the very wording of the Rule, act to terminate a trial in which jeopardy has long since attached.8 And a successful governmental appeal reversing the judgments of acquittal would necessitate another trial, or, at least, "further proceedings of some sort, devoted to the resolution of factual issues going to the elements of the offense charged . . ." United States v. Jenkins, 420 U.S. 358, 370 (1975). Therefore, the present case is not one where the double jeopardy bar to appealability is automatically averted. Rather, we must inquire further into the constitutional significance of a Rule 29 (c) acquittal.

Perhaps the most fundamental rule in the history of double jeopardy jurisprudence has been that "[a] verdict of acquittal. . . could not be reviewed, on error or otherwise, without putting [a defendant] twice in jeopardy, and thereby violating the Constitution." United States v. Ball, 163 U.S. 662, 671 (1896). In Fong Foo v. United States, supra, for example, a District Court directed jury verdicts of acquittal and subsequently entered formal judgments of acquittal. The Court of Appeals entertained the appeal of the United States and reversed the District Court's ruling on the ground that the trial judge was without power to direct acquittals under the circumstances disclosed by the record. We reversed, holding that, although the Court of Appeals may correctly have believed "that the acquittal was based upon an egregiously erroneous foundation, . . . [n]evertheless, `[t]he verdict of acquittal was final, and could not be reviewed . . . without putting [the defendants] twice in jeopardy, and thereby violating the Constitution.' " 369 U. S., at 143. See also Kepner v. United States, supra; United States v. Sisson, 399 U. S., at 289-290; Serfass v. United States, supra, at 392. In applying this teaching of Ball, Fong Foo, and like cases, we have emphasized that what constitutes an "acquittal" is not to be controlled by the form of the judge's action. United States v. Sisson, supra, at 270; cf. United States v. Wilson, 420 U. S., at 336.9 Rather, we must determine whether the ruling of the judge, whatever its label, actually represents a resolution, correct or not, of some or all of the factual elements of the offense charged.

There can be no question that the judgments of acquittal entered here by the District Court were "acquittals" in substance as well as form. The District Court plainly granted the Rule 29 (c) motion on the view that the Government had not proved facts constituting criminal contempt.10 The court made only too clear its belief that the prosecution was " `the weakest [contempt case that] I've ever seen.' " 534 F. 2d, at 587. In entering the judgments of acquittal, the court also recorded its view that " `the Government has failed to prove the material allegations beyond a reasonable doubt' " and that " `defendant should be found "not guilty." ' "

Thus, it is plain that the District Court in this case evaluated the Government's evidence and determined that it was legally insufficient to sustain a conviction. The Court of Appeals concluded that this determination of insufficiency of the evidence triggered double jeopardy protection.11 The Government, however, disputes the constitutional significance of the District Court's action. It submits that only a verdict of acquittal formally returned by the jury should absolutely bar further proceedings and that "[o]nce the district court declared a mistrial and dismissed the jury, any double jeopardy bar to a second trial dissolved." Brief for United States 21. We cannot agree.

Of course, as the Government argues, in a jury trial the primary finders of fact are the jurors. Their overriding responsibility is to stand between the accused and a potentially arbitrary or abusive Government that is in command of the criminal sanction. For this reason, a trial judge is prohibited from entering a judgment of conviction or directing the jury to come forward with such a verdict, see Sparf & Hansen v. United States, 156 U.S. 51, 105 (1895); Carpenters v. United States, 330 U.S. 395, 408 (1947), regardless of how overwhelmingly the evidence may point in that direction. The trial judge is thereby barred from attempting to override or interfere with the jurors' independent judgment in a manner contrary to the interests of the accused.

Such a limitation on the role of a trial judge, however, has never inhibited his ruling in favor of a criminal defendant. Fong Foo v. United States, 369 U.S. 141 (1962), establishing the binding nature of a directed verdict, is dispositive on that point. Since Rule 29 merely replaces the directed-verdict mechanism employed in Fong Foo, and accords the federal trial judge greater flexibility in timing his judgment of acquittal, no persuasive basis exists for construing the Rule as weakening the trial court's binding authority for purposes of double jeopardy.12 Rather, the Notes of the Advisory Committee have confirmed that Rule 29 intends no substantive alteration in the role of judge or jury, but creates a purely formal modification of the directed-verdict device in order "to make the nomenclature accord with the realities." 18 U. S. C. App., p. 4504. Accordingly, United States v. Sisson, supra, at 290, held that Rule 29 recognizes no "legal distinction" between judge and jury with respect to the invocation of the protections of the Double Jeopardy Clause.

The Government, however, would read Fong Foo and, by implication, Rule 29 differently. It argues that the judge's directed verdict in Fong Foo was binding for double jeopardy purposes because the formal verdict of acquittal, though on direction, was rendered not by the judge, but by the jury, which then was discharged. This in effect turns the constitutional significance of a Rule 29 judgment of acquittal on a matter of timing. Thus, if the judge orders entry of judgment of acquittal on his own or on defendant's motion prior to submission of the case to the jury, as he may under Rule 29 (a), or after submission but prior to the jury's return of a verdict, as authorized by Rule 29 (b)—and the jury thereafter is discharged—the Government's argument necessarily concedes that the Double Jeopardy Clause would preclude both appeal and retrial. If, however, the judge chooses to await the outcome of the jury's deliberations and, upon its failure to reach a verdict, acts on a timely motion for acquittal filed under Rule 29 (c) within seven days of its discharge, the Government submits that the Double Jeopardy Clause should not bar an appeal.

We are not persuaded. Rule 29 contemplated no such artificial distinctions. Rather the differentiations in timing were intentionally incorporated into the Rule to afford a trial judge the maximum opportunity to consider with care a pending acquittal motion. Insofar as the Government desires an appeal to correct error, irrational behavior, or prejudice on the part of the trial judge, its interest is not dependent on the point of trial when the judge enters his Rule 29 judgment, and suffers no special prejudice by a judge's acquittal after the jury disagrees and is discharged.13 And to the extent that the judge's authority under Rule 29 is designed to provide additional protection to a defendant by filtering out deficient prosecutions, the defendant's interest in such protection is essentially identical both before the jury is allowed to come to a verdict and after the jury is unable to reach a verdict: In either case, the defendant has neither been condemned nor exculpated by a panel of his peers and, in the absence of intervention by the trial judge, his vindication must await further action by a jury.

We thus conclude that judgments under Rule 29 are to be treated uniformly and, accordingly, the Double Jeopardy Clause bars appeal from an acquittal entered under Rule 29 (c) after a jury mistrial no less than under Rule 29 (a) or (b). United States v. Sanford, 429 U.S. 14 (1976), does not dictate a contrary result. In Sanford, a jury trial ended in the declaration of a mistrial. A judgment of acquittal was never entered. Some four months later, with the second trial well into the preparatory stage, the trial court dismissed the prosecution's indictment. Because the dismissal "occurred several months after the first trial had ended in a mistrial, but before the retrial of respondents had begun," id., at 16, the Court characterized the judge's dismissal as "a pretrial order," ibid., and concluded that its appealability was governed by Serfass v. United States, 420 U.S. 377 (1975). The Court's linking of Sanford with Serfass highlights the distinctiveness of an acquittal under Rule 29 (c). In Serfass the Court carefully distinguished between appeal of a pretrial order and appeal of " `a legal determination on the basis of facts adduced at the trial relating to the general issue of the case.' " 420 U. S., at 393, quoting United States v. Sisson, 399 U. S., at 290 n. 19. A Rule 29 acquittal, however, falls squarely within the latter category: By the very language of the Rule, such a judgment of acquittal plainly concludes a pending prosecution in which jeopardy has attached, following the introduction at trial of evidence on the general issue. In that circumstance we hold that "although retrial is sometimes permissible after a mistrial is declared but no verdict or judgment has been entered, the verdict of acquittal foreclosed retrial and thus barred appellate review." United States v. Wilson, 420 U. S., at 348.

Affirmed.

MR. JUSTICE REHNQUIST took no part in the consideration or decision of this case.

MR. JUSTICE STEVENS, concurring in the judgment.

There is no statutory authority for a Government appeal from a judgment of acquittal in a criminal case. The plain language of 18 U. S. C. § 3731, together with its unambiguous legislative history, makes it perfectly clear that Congress did not authorize—and did not intend to authorize—appeals from acquittals.1

Prior to its most recent amendment in 1970, the Criminal Appeals Act had been a source of great confusion, "a most unruly child that has not improved with age," United States v. Sisson, 399 U.S. 267, 307. The Act had been construed to incorporate obscure distinctions between various types of dismissals, some of which were appealable directly to this Court, some to the court of appeals, and some that could not be appealed to either court.2 However, the one thing that had always been clear was that "no appeal [could] be taken by the Government from an acquittal no matter how erroneous the legal theory underlying the decision," id., at 299.

The 1970 amendment changed the law by eliminating all distinctions between different kinds of dismissals, but neither the present statute nor any of its predecessors has ever authorized an appeal from an acquittal. The statute, in relevant part, now reads:

There is nothing in this statutory language to suggest that a judgment of acquittal, as opposed to a dismissal, is appealable.

The legislative history demonstrates that Congress intended to eliminate nonconstitutional barriers to appeals from dismissals, but did not intend to allow appeals from acquittals. As this Court has recognized, the Senate Report is the key to the legislative history.3 The Report opens by describing the purpose of the bill as being "to resolve serious problems which frequently have arisen with respect to the right of the United States to appeal rulings which terminate prosecutions other than by judgments of acquittal . . . ." S. Rep. No. 91-1296, p. 2 (1970) (emphasis added). Apart from the problem of direct Supreme Court review, the Report states that the "major problem that has arisen under the present statute concerns the total lack of appealability of certain kinds of dismissals and suppressions." Id., at 4 (emphasis added). The Report then discusses at length the then-existing limitations on appeals from dismissals.4 The Committee believed that the Constitution allowed the Government to appeal any dismissal, id., at 7-12, and stated that the bill was "intended to be liberally construed so as to effectuate its purpose of permitting the Government to appeal from dismissals of criminal prosecutions by district courts in all cases where the Constitution permits . . . ." Id., at 18 (emphasis added). On the other hand, the Committee believed that the Constitution barred any appeal from an acquittal or from a dismissal amounting to an acquittal; "[a] true acquittal is based upon the insufficiency of the evidence to prove an element of the offense." Id., at 11.

The same understanding was demonstrated by the bill's sponsor when he presented the Senate Report on the floor. He summarized the bill as providing that "the Government has the right to appeal any ruling by a district court in a criminal case which dismisses a prosecution in favor of a defendant except where the ruling is an acquittal"; he also presented a letter from the Solicitor General explaining that the bill would allow "an appeal from any dismissal except one amounting to a `judgment of acquittal,' i. e., a factual judgment that the defendant is not guilty of the crime charged and is thereby entitled to protection against double jeopardy." 116 Cong. Rec. 35659 (1970) (remarks of Sen. Hruska).

As the Court explained in Wilson, the Conference Committee made a minor change in the wording of the bill. See Wilson, 420 U. S., at 338. That change narrowed the bill in two respects. The Senate bill had allowed appeals from dismissals and also from any order "terminating a prosecution in favor of a defendant," and had expressly barred appeals from a judgment of acquittal.5 In short, as the Conference Committee stated, the Senate bill authorized an appeal from "any decision or order terminating a prosecution except an acquittal," H. R. Conf. Rep. No. 91-1768, p. 21 (1970). The Conference Committee's change narrowed the bill by deleting the reference to orders "terminating a prosecution in favor of a defendant," leaving only dismissals appealable. (This deletion rendered superfluous the exception for acquittals, which was also deleted.) The Committee's change also narrowed the bill by barring any appeal, even from a dismissal, when further prosecution would violate double jeopardy.

An attempt to authorize the Government to appeal from acquittals would have represented a radical change in the law. The sponsor of the bill apparently did not understand the legislation to have such far-reaching effects; he described it as "noncontroversial legislation which would do away with unnecessary and perplexing jurisdictional problems in appeals by the Government in criminal cases . . . ." 116 Cong. Rec. 35659 (1970) (remarks of Sen. Hruska). Similarly, the Conference Report describes the Senate bill as merely eliminating "[t]echnical distinctions . . . on appeals by the United States," H. R. Conf. Rep. No. 91-1768, supra, at 21.6

Interpreting legislative history is sometimes a perplexing and uncertain task. In this instance, however, the legislative history is absolutely clear: Congress was interested solely in expanding the Government's right to appeal from the dismissal of an indictment; it had no desire to allow appeals from acquittals and believed such appeals would be unconstitutional.

Since I am satisfied that Congress has not authorized the Government to appeal from a judgment of acquittal, the only question presented is whether such a judgment was entered in this case. The answer to that question, as the Court demonstrates, is perfectly clear. By virtue of Fed. Rule Crim. Proc. 29 (c), the mistrial did not terminate the judge's power to make a decision on the merits. His ruling, in substance as well as form, was therefore an acquittal.7 For this reason, I concur in the Court's judgment.

MR. CHIEF JUSTICE BURGER, dissenting.

The order of acquittal in favor of respondents was entered by the District Judge after a mistrial had been declared due to a jury deadlock. Once the jury was dismissed, respondents ceased to be in jeopardy in that proceeding; they could no longer be convicted except after undergoing a new trial. For a century and a half it has been accepted that a defendant may properly be reprosecuted after the declaration of such a mistrial, United States v. Perez, 9 Wheat. 579 (1824). Therefore the District Judge's ruling here was made "prior to a trial that the Government had a right to prosecute and that the defendant was required to defend." United States v. Sanford, 429 U.S. 14, 16 (1976).1

The present case cannot be distinguished from Sanford in constitutionally material respects. It is true that the District Judge here phrased his order as an acquittal rather than as a dismissal, and that the order was entered pursuant to a timely Rule 29 (c) motion. However, such mechanical niceties are not dispositive of whether retrial would expose defendants to double jeopardy; our Fifth Amendment inquiry should focus on the substance rather than the form of the proceedings below. In ruling on a motion for acquittal the District Judge must pass on the sufficiency, not on the weight, of the Government's case, United States v. Isaacs, 516 F.2d 409, 410 (CA5), cert. denied, 423 U.S. 936 (1975); United States v. Wooten, 503 F.2d 65, 66 (CA4 1974). "[T]he applicable standard is whether [the District Judge as a trier of fact] could, not whether he would, find the accused guilty on the Government's evidence." United States v. Consolidated Laundries Corp., 291 F.2d 563, 574 (CA2 1961) (emphasis in original).

The District Judge's ruling is thus plainly one of law, not of fact; it could only exonerate, not convict, the defendant. No legitimate interest of the defendant requires that this ruling be insulated from appellate review. On the other hand, barring the appeal jeopardizes the Government's substantial interest in presenting a legally sufficient case to the jury. The Court's holding today is thus wholly inconsistent with the intent of Rule 29 (c) as described by the drafters in the Advisory Committee Notes. In explaining the 1966 amendments to the Rule, the Notes expressly state: "No legitimate interest of the government is intended to be prejudiced by permitting the court to direct an acquittal on a post-verdict motion." 18 U. S. C. App., p. 4505. Surely the well-recognized right to reprosecute is such a "legitimate interest of the government," and should remain unaffected by the District Judge's order of acquittal.

Nor will the interest of clarity and consistency in the administration of the criminal justice system be served by today's holding. By hinging the outcome of this case on the timing of the post-trial motion and the label on the order, the Court is elevating form over substance and undermining the theoretical framework established by the Wilson-Jenkins-Serfass trilogy2 of two Terms ago and the Sanford and United States v. Morrison, 429 U.S. 1 (1976), decisions earlier this Term. All litigants in our criminal courts—Government and defendants alike—are harmed by the uncertainty thus created. For these reasons, I cannot join the Court's holding and I respectfully dissent.