Richardson v. United States , 104 S. Ct. 3081 ( 1984 )

Justice Rehnquist

delivered the opinion of the Court.

The jury trying petitioner acquitted him of one of several counts, but was unable to agree as to the others. The District Court declared a mistrial as to these counts of the indictment and set them down for retrial. Petitioner moved to bar his retrial, claiming that a second trial would violate the Double Jeopardy Clause of the Fifth Amendment because evidence sufficient to convict on the remaining counts had not been presented by the Government at the first trial. The District Court denied this motion, and the Court of Appeals dismissed petitioner’s appeal from that ruling for lack of jurisdiction under 28 U. S. C. § 1291. We now reverse that jurisdictional determination and proceed to address the merits of petitioner’s double jeopardy claim. We find the claim unavailing, since it lacks its necessary predicate, there having been no termination of original jeopardy.

Petitioner was indicted in the United States District Court for the District of Columbia on two counts of distributing a controlled substance, in violation of 21 U. S. C. § 841(a)(1), and one count of conspiring to distribute a controlled substance, in violation of 21 U. S. C. § 846. Twice — at the close of the Government’s case in chief and before submission of the case to the jury — he moved unsuccessfully for judgment of acquittal on the ground that the Government had failed to introduce sufficient evidence to warrant a finding of guilt beyond a reasonable doubt.¹ The jury acquitted petitioner of one substantive narcotics violation, but was unable to reach a verdict on the two remaining counts. The District Court declared a mistrial as to these two remaining counts and scheduled a retrial, at which point petitioner renewed his motion for judgment of acquittal based on the legal insufficiency of the evidence. In addition, petitioner argued at this time that retrial was barred by the Double Jeopardy Clause of the Fifth Amendment.² The District Court denied both motions and petitioner appealed.

The Court of Appeals for the District of Columbia Circuit dismissed petitioner’s appeal for want of jurisdiction. 226 U. S. App. D. C. 342, 702 F. 2d 1079 (1983). The Court of Appeals reasoned that its jurisdiction to review petitioner’s double jeopardy claim depended upon the appealability of the District Court’s ruling on petitioner’s motion for judgment of acquittal based on the insufficiency of the evidence. Because the District Court’s ruling on the latter motion was not a final judgment appealable under 28 U. S. C. § 1291, that ruling could only be reviewed if it fell within the collateral-order doctrine enunciated by this Court in Cohen v. Beneficial Industrial Loan Corp., 337 U. S. 541 (1949). The court held that the ruling on the legal sufficiency of the evidence was “anything but collateral,” and thus it lacked appellate jurisdiction to review that claim. 226 U. S. App. D. C., at 344-345, 702 F. 2d, at 1081-1082. Since the merits of petitioner’s double jeopardy claim depended entirely on reviewing the legal sufficiency of the evidence, the court concluded that petitioner had failed to present a double jeopardy claim which could be reviewed at that point.³ We granted certio-rari to review the decision of the Court of Appeals, 464 U. S. 890 (1983), because of a conflict with the decision reached by the Third Circuit in United States v. McQuilkin, 673 F. 2d 681 (1982),⁴ and because of the implications of the decision below for the administration of criminal justice.

Petitioner contends that under our decisions in Abney v. United States, 431 U. S. 651 (1977), and Burks v. United States, 437 U. S. 1 (1978), he is entitled to an interlocutory review of his claim that a second trial is barred by the Double Jeopardy Clause because the Government failed to introduce legally sufficient evidence to go to the jury at the first trial. Burks, however, involved no issue of interlocutory review, since it was an appeal from a final judgment of conviction. But Abney arose in the context of an interlocutory appeal. There we held that denial of a defendant’s, pretrial motion to dismiss an indictment on double jeopardy grounds was appealable as a “collateral order” under 28 U. S. C. § 1291. Despite the strong congressional policy embodied in § 1291 against interlocutory appeals in criminal cases, DiBella v. United States, 369 U. S. 121, 126 (1962), we held that the claim in Abney met the three-part test established in Cohen v. Beneficial Industrial Loan Corp., supra, because a double jeopardy claim contested the very power of the Government to bring a person to trial, and the right would be significantly impaired if review were deferred until after the trial. We said:

“Obviously, [this] aspec[t] 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 been forced to endure a trial that the Double Jeopardy Clause was designed to prohibit. Com sequently, if a criminal defendant is to avoid exposure to double jeopardy and thereby enjoy the full protection of the Clause, his double jeopardy challenge to the indictment must be reviewable before that subsequent exposure occurs.” 431 U. S., at 662 (footnote omitted) (emphasis in original).

The Government contends, and the Court of Appeals agreed, that the double jeopardy claim raised by petitioner in this case does not meet the three-part test of the Cohen case. It argues that resolution of the double jeopardy claim inevitably involves evaluation of the sufficiency of the evidence against petitioner at the first trial, and therefore the claim is not completely collateral to the merits of the charge against petitioner. Cf. Abney, supra, at 660. To dispose of petitioner’s double jeopardy claim, the reviewing court would have to conclude that the evidence introduced at the first trial on these counts was insufficient as a matter of law to convict petitioner. This canvassing of the record would be indistinguishable from an assessment of the sufficiency of the evidence that would be reviewed after a judgment of conviction, and, of course, would go to the heart of the Government’s case on the merits. The Government and the Court of Appeals, therefore, are of the view that petitioner’s double jeopardy claim may be only reviewed following a final judgment of conviction after a second trial.

All of this may be conceded, and yet we think that the collateral-order doctrine applied in Abney should not be read so narrowly as to bar from interlocutory review the type of double jeopardy claim asserted here. Petitioner seeks review of the sufficiency of the evidence at his first trial, not to reverse a judgment entered on that evidence, but as a necessary component of his separate claim of double jeopardy. While consideration of petitioner’s double jeopardy claim would require the appellate court to canvass the sufficiency of the evidence at the first trial, this fact alone does not prevent the District Court’s order denying petitioner’s double jeopardy claim from being appealable.

The Government understandably expresses concern that interlocutory appeals of this nature may disrupt the administration of criminal justice. But allowing appeals such as this is completely consistent with the Court’s admonition in Cohen that the words “final decision” in § 1291 should have a “practical rather than a technical construction.” Cohen, 337 U. S., at 546. Petitioner’s first trial had ended and his second trial had been rescheduled before he asserted his double jeopardy claim to bar retrial. There was thus no effort to interrupt or delay proceedings during the time that a jury was empaneled or that the District Court had under advisement motions relating to the first trial. Moreover, we have indicated that the appealability of a double jeopardy claim depends upon its being at least “colorable,” United States v. MacDonald, 435 U. S. 850, 862 (1978), and that “frivolous claims of former jeopardy” may be weeded out by summary procedures, Abney, supra, at 662, n. 8. Cf. United States v. Head, 697 F. 2d 1200, 1204 (CA4 1982). These limitations, together with the continuing requirement that the order of the District Court which is appealed from be a “final” decision on the double jeopardy claim, provide adequate insurance against the evils which the Government fears. Thus, we hold that petitioner has raised a colorable double jeopardy claim appealable under 28 U. S. C § 1291.

Turning to the merits of petitioner’s double jeopardy claim, we reject it. He asserts that if the Government failed to introduce sufficient evidence to establish his guilt beyond a reasonable doubt at his first trial, he may not be tried again following a declaration of a mistrial because of a hung jury. While petitioner bases this contention on Burks v. United States, 437 U. S. 1 (1978), we do not agree that Burks resulted in the sweeping change in the law of double jeopardy which petitioner would have us hold. In Burks we held that once a defendant obtained an unreversed appellate ruling that the Government had failed to introduce sufficient evidence to convict him at trial, a second trial was barred by the Double Jeopardy Clause. Id., at 18. We overruled prior decisions such as Bryan v. United States, 338 U. S. 552 (1950), in which we held that if a defendant successfully sought reversal of his conviction on appeal because of insufficient evidence, retrial following such reversal was not barred by the Double Jeopardy Clause.

The Court in Burks did not deal with the situation in which a trial court declares a mistrial because of a jury’s inability to agree on a verdict. Thus, petitioner’s reliance on Burks in the context of the present case can be supported only if that decision laid down some overriding principle of double jeopardy law that was applicable across the board in situations totally different from the facts out of which it arose. But it is quite clear that our decision in Burks did not extend beyond the procedural setting in which it arose. Where, as here, there has been only a mistrial resulting from a hung jury, Burks simply does not require that an appellate court rule on the sufficiency of the evidence because retrial might be barred by the Double Jeopardy Clause. See Justices of Boston Municipal Court v. Lydon, 466 U. S. 294, 308-310 (1984).

The case law dealing with the application of the prohibition against placing a defendant twice in jeopardy following a mistrial because of a hung jury has its own sources and logic. It has been established for 160 years, since the opinion of Justice Story in United States v. Perez, 9 Wheat. 579 (1824), that a failure of the jury to agree on a verdict was an instance of “manifest necessity” which permitted a trial judge to terminate the first trial and retry the defendant, because “the ends of public justice would otherwise be defeated.” Id., at 580. Since that time we have had occasion to examine the application of double jeopardy principles to mistrials granted for reasons other than the inability of the jury to agree, whether the mistrial is granted on the motion of the prosecution, see Illinois v. Somerville, 410 U. S. 458 (1973), or on the motion of the defendant, see Oregon v. Kennedy, 456 U. S. 667 (1982); United States v. Dinitz, 424 U. S. 600 (1976). Nevertheless, we have constantly adhered to the rule that a retrial following a “hung jury” does not violate the Double Jeopardy Clause. Logan v. United States, 144 U. S. 263, 297-298 (1892). Explaining our reasons for this conclusion in Arizona v. Washington, 434 U. S. 497 (1978), we said:

“[Without exception, the courts have held that the trial judge may discharge a genuinely deadlocked jury and require the defendant to submit to a second trial. This rule accords recognition to society’s interest in giving the prosecution one complete opportunity to convict those who have violated its laws.” Id., at 509.

We are entirely unwilling to uproot this settled line of cases by extending the reasoning of Burks, which arose out of an appellate finding of insufficiency of evidence to convict following a jury verdict of guilty, to a situation where the jury is unable to agree on a verdict. Thirty-five years ago we said in Wade v. Hunter, 336 U. S. 684, 688-689 (1949):

“The double-jeopardy provision of the Fifth Amendment, however, does not mean that every time a defendant is put to trial before a competent tribunal he is entitled to go free if the trial fails to end in a final judgment. Such a 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. There may be unforeseeable circumstances that arise during a trial making its completion impossible, such as the failure of a jury to agree on a verdict. In such event the purpose of law to protect society from those guilty of crimes frequently would be frustrated by denying courts power to put the defendant to trial again. . . . What has been said is enough to show that a defendant’s valued right to have his trial completed by a particular tribunal must in some instances be subordinated to the public’s interest in fair trials designed to end in just judgments.”

We think that the principles governing our decision in Burks, and the principles governing our decisions in the hung jury cases, are readily reconciled when we recognize that the protection of the Double Jeopardy Clause by its terms applies only if there has been some event, such as an acquittal, which terminates the original jeopardy. See Justices of Boston Municipal Court, supra; Price v. Georgia, 398 U. S. 323, 329 (1970). Since jeopardy attached here when the jury was sworn, see United States v. Martin Linen Supply Co., 430 U. S. 564, 569 (1977), petitioner’s argument necessarily assumes that the judicial declaration of a mistrial was an event which terminated jeopardy in his case and which allowed him to assert a valid claim of double jeopardy.

But this proposition is irreconcilable with cases such as Perez and Logan, and we hold on the authority of these cases that the failure of the jury to reach a verdict is not an event which terminates jeopardy. Our holding in Burks established only that an appellate court’s finding of insufficient evidence to convict on appeal from a judgment of conviction is for double jeopardy purposes, the equivalent of an acquittal; it obviously did not establish, consistently with cases such as Perez, that a hung jury is the equivalent of an acquittal.⁵ Justice Holmes’ aphorism that “a page of history is worth a volume of logic” sensibly applies here, and we reaffirm the proposition that a trial court’s declaration of a mistrial following a hung jury is not an event that terminates the original jeopardy to which petitioner was subjected. The Government, like the defendant, is entitled to resolution of the case by verdict from the jury, and jeopardy does not terminate when the jury is discharged because it is unable to agree. Regardless of the sufficiency of the evidence at petitioner’s first trial, he has no valid double jeopardy claim to prevent his retrial.⁶

Accordingly, we reverse the judgment of the Court of Appeals on the question of jurisdiction, and on the merits conclude that the District Court was correct in denying petitioner’s motion to bar retrial.

It is so ordered.

1 The substance of petitioner’s claim that the Government’s evidence was insufficient to convict is that the evidence established that petitioner was involved in only one drug transaction, an event which alone, he argues, is insufficient to support a charge of conspiracy. Alternatively, petitioner argues that even if the evidence supports a finding that two drug sales took place, these sales were so isolated in time that no conspiracy could be inferred from their occurrence. Petitioner’s case depends, however, on excluding from consideration all statements made by his alleged co-conspirator implicating petitioner in the drug scheme. In light of our holding that petitioner has no valid double jeopardy claim, we have no occasion to address this argument.

2 The text of the Double Jeopardy Clause of the Fifth Amendment reads: “[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb.”

3 Judge Scalia dissented, arguing that under our decision in Abney v. United States, 431 U. S. 651 (1977), the court had jurisdiction under 28 U. S. C. § 1291 to review petitioner’s double jeopardy claim. Judge Scalia would have held, however, that petitioner failed to raise a meritorious double jeopardy claim.

4 Two other Circuits that have considered the question have reached the same conclusion as the Court of Appeals in this case. See United States v. Ellis, 646 F. 2d 132, 135 (CA4 1981); United States v. Becton, 632 F. 2d 1294, 1297 (CA5 1980), cert. denied, 454 U. S. 837 (1981).

5 Of course, a trial court’s finding of insufficient evidence also is the equivalent of an acquittal, see Hudson v. Louisiana, 450 U. S. 40, 44-45, n. 5 (1981), but Burks was not necessary to establish that principle. See Burks v. United States, 437 U. S., at 11, citing Fong Foo v. United States, 369 U. S. 141 (1962); Kepner v. United States, 195 U. S. 100 (1904).

6 It follows logically from our holding today that claims of double jeopardy such as petitioner’s are no longer “colorable” double jeopardy claims which may be appealed before final judgment. A colorable claim, of course, presupposes that there is some possible validity to a claim. Cf. Jones v. Barnes, 463 U. S. 745, 751-752 (1983); Florida Dept. of State v. Treasure Salvors, Inc., 458 U. S. 670, 694-695 (1982). Since no set of facts will support the assertion of a claim of double jeopardy like petitioner’s in the future, there is no possibility that a defendant’s double jeopardy rights will be violated by a new trial, and there is little need to interpose the delay of appellate review before a second trial can begin.