United States v. Robert D.H. Richardson , 702 F.2d 1079 ( 1983 )

WILKEY, Circuit Judge:

This case highlights the tension created by the intersection of a criminal defendant’s double jeopardy right to avoid the rigors and embarrassment of an unnecessary second trial and the long-standing rule that a criminal defendant has no constitutional right to an appeal. Because the present appeal does not fit within the scope of our appellate jurisdiction, we hold that the defendant cannot appeal the trial court’s double jeopardy ruling' at this time even though he may be required needlessly to endure the strains of a second trial.

I. Background

Appellant, Robert D.H. Richardson, was indicted for conspiracy to distribute a controlled substance¹ and for two counts of distribution of a controlled substance.² His motion for a judgment of acquittal on the ground that the government had failed to produce legally sufficient evidence was denied both at the close of the government’s evidence and immediately before submission of the case to the jury. The jury acquitted on one of the two distribution counts but was unable to reach a verdict on the conspiracy and remaining distribution counts. The court declared a mistrial and scheduled retrial, whereupon appellant renewed his motion for judgment of acquittal, and in addition moved to bar retrial on the basis of former jeopardy. This appeal was taken from the denial of those motions.

It is important at the outset to understand the nature of Richardson’s double jeopardy claim. Contrary to the dissent’s implication,³ Richardson does not claim that the jury’s failure to reach a verdict bars retrial. Instead, citing Burks v. United States,⁴ in which the Supreme Court held that a criminal defendant could not be retried after an appellate court determined that the evidence presented at his first trial was legally insufficient, he contends that “no matter what the jury did [he] cannot be retried since the evidence was insufficient to submit to the jury in the first instance.”⁵ Thus, Richardson’s double jeopardy claim is based entirely on his contention that the evidence at the first trial was legally insufficient. Since the trial court ruled that the evidence presented at the first trial was sufficient, Richardson’s double jeopardy claim has meaning only if that ruling can be overturned. Our ability to rule on Richardson’s double jeopardy claim in any meaningful manner therefore depends on the appealability of the trial court’s ruling on the sufficiency of the evidence. Because the sufficiency issue cannot now be reviewed, we hold that Richardson is not entitled to appellate review of his double jeopardy claim at this time.

II. Appellate Jurisdiction

In determining the appealability of an issue arising in a federal criminal proceeding, it is important to remember that in a criminal case “there is no constitutional right to an appeal.”⁶ Thus, it is not possible for Richardson to argue that the double jeopardy clause requires us to entertain the present appeal. The appealability of Richardson’s claims depends solely on whether Congress authorized such appeals under 28 U.S.C. § 1291.⁷ Since a final judgment has not been reached by the court below,⁸ appeal under section 1291 in turn depends on Richardson’s ability to bring his claims within the collateral order exception to the final judgment rule. This rule was first recognized in Cohen v. Beneficial Industrial Loan Corp.⁹ and was reiterated in the context of a criminal case in Abney v. United States.¹⁰

To come within the reach of the Cohen exception, the decision in question must meet three tests. First, it must fully dispose of the controverted issue; in no sense may it “leave the matter ‘open, unfinished or inconclusive.’ ”¹¹ Second, it must not be “simply a ‘step toward final disposition of the merits of the case’ ”; it must resolve “an issue completely collateral to the cause of action asserted.”¹² Finally, the decision must involve “an important right which would be ‘lost, probably irreparably,’ ” if review awaited final judgment.¹³

We have little difficulty in applying this test to the district court’s ruling on Richardson’s insufficiency claim. That ruling fails to meet the second and third requirements of Cohen. As two other circuits have noted, the legal sufficiency of the evidence presented is “a completely non-collateral issue.”¹⁴ This is because the ultimate question in a criminal trial is whether the defendant is guilty of the crime charged. A defendant who chooses to go to trial is not guilty unless the prosecution is able to prove beyond a reasonable doubt that the defendant committed the crime.¹⁵ If the evidence presented at the first trial was legally insufficient, Richardson is automatically not guilty. Thus, the sufficiency of the evidence is anything but collateral to the merits of the upcoming trial (i.e., the question of defendant’s guilt, for this is determined by the sufficiency of the evidence); rather, it is a “step toward final disposition of the merits of the case [which will] be merged in the final judgment,” the type of issue which is not covered by the collateral order exception.¹⁶

Further, the right to appellate review of the issue will not necessarily be lost if we refuse review at this time. Three circuits have held that a criminal defendant can challenge the sufficiency of the evidence presented at his first trial (which resulted in a hung jury) when appealing his conviction at the second trial.¹⁷ Indeed, in the present case the government concedes that Richardson’s insufficiency claim will not be lost if it is not reviewed at this time, noting that “in the event he is convicted, [Richardson] can raise [the insufficiency claim] on appeal from that conviction.”¹⁸ Therefore, because the insufficiency claim does not meet either the second or third Cohen requirements, we cannot review that claim until after a final judgment is entered.

The appealability of the trial court’s ruling on the double jeopardy claim is not as clear. Two circuits have held that the trial court’s denial of a double jeopardy claim based on the insufficiency of the evidence is not immediately appealable under Cohen.¹⁹ One circuit has held to the contrary.²⁰ We agree with the former view,²¹ although for reasons slightly different from those advanced by the Fourth and Fifth Circuits.

As noted earlier,²² Richardson’s double jeopardy claim is premised entirely on the assumption that the trial court’s ruling on the sufficiency issue was erroneous. As also noted earlier,²³ the propriety of the trial court’s ruling on that issue cannot be reviewed by an appellate court at this time. Therefore, since Richardson’s double jeopardy claim exists at the appellate level²⁴ only if the district court’s sufficiency of the evidence ruling is overturned, our refusal to review that ruling precludes any meaningful review of his double jeopardy claim at this time. In other words, because this court is unable to address the sufficiency issue at this time and because that issue is the only basis for Richardson’s double jeopardy claim, Richardson has failed to make at this time any double jeopardy claim which can be reviewed by an appellate court.²⁵

The analysis outlined above may be self-explanatory. However, lest the simplicity of that analysis camouflage the complexity and importance of the issue being decided, we undertake to state our reasoning in another manner. Despite the fact that Richardson’s underlying claims are constitutional, the jurisdictional issue in this case concerns only the timing and scope of appeal, a question of statutory interpretation. That jurisdictional issue is not an easy one, however, because of the nature of the legal issue underlying both claims — the sufficiency of the evidence — a legal issue which requires full review of the entire record created at the trial level. In resolving that issue, there appear to be at least four alternatives available to us. First, we could read section 1291 so as to permit full review of both the double jeopardy and the insufficiency claim at this time. Second, we could interpret the statute so as to authorize immediate appeal of the double jeopardy claim, but not of the insufficiency claim. Third, we could deny immediate review of the present claims and wipe the slate clean, thereby precluding review. Finally, we could, as we do, conclude that the finality requirement of section 1291 precludes immediate appeal of any claim involving the sufficiency of the evidence, but that full review of both claims could be had after a final judgment is entered in the second trial.

The first alternative is unacceptable. The entire purpose of the finality requirement of section 1291 is to “discourage undue litigiousness and leaden-footed administration of justice, particularly damaging to the conduct of criminal cases.”²⁶ That purpose would be greatly undermined if a criminal defendant could interrupt the trial proceedings to seek appellate review of the trial court’s ruling on the sufficiency of evidence presented. Indeed, the established rule in this circuit, as well as in other circuits, is that denial of a motion to acquit on the ground of insufficient evidence is not a final decision within the meaning of section 1291.²⁷ Nor does the insufficiency claim fit into the Cohen exception, as noted above.²⁸ Further, granting jurisdiction to review a double jeopardy claim made after a declaration of mistrial caused by a hung jury would implicate the longstanding rule that retrial after a hung jury is not barred by the double jeopardy clause.²⁹ Therefore, the panel unanimously repudiates the first alternative. However, at that point the unanimity ends. The dissent would adopt a mixture of the second and third alternatives (alternatives which are not inextricably connected), and we adopt the fourth, concluding that both the second and the third alternatives are undesirable.

Authorizing immediate review of the double jeopardy claim without reviewing the insufficiency claim which gives it life (the second alternative) is unacceptable because it renders meaningless the review granted. The dissent would adopt this alternative because of the nature of the right involved in the double jeopardy claim. However, the dissent would assert jurisdiction over the double jeopardy claim and then perfunctorily dismiss it as frivolous without examining the argument underlying the claim. If, as the dissent asserts, the protection of Richardson’s double jeopardy rights is so important that immediate review should be granted, that review should be meaningful, not merely cursory.

Completely precluding review of the insufficiency claim (the third alternative) is even more unpalatable.³⁰ The elimination of Richardson’s right to have the trial court’s determination of sufficiency reviewed would increase the likelihood that the government would be given a second chance to convict Richardson even though it failed to produce legally sufficient evidence the first time it had a full and fair opportunity to do so. This is one of the primary evils the double jeopardy clause was designed to prevent. As the Supreme Court has noted, the double jeopardy clause “forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding.”³¹ Thus, wiping the slate clean after the first trial would permit the government to bolster its case and convict the defendant at the second trial without ever being held accountable at the appellate level for its possible failure to produce legally sufficient evidence at the first trial. We find no justification for this impairment of Richardson’s rights.

We are aware that our decision increases the possibility that Richardson’s double jeopardy right to be free from the rigors of an unnecessary second trial will be infringed since he will be required to endure the second trial before he is able to obtain appellate review of the trial court’s ruling on the issue. However, because the rights infringed by postponing review are less absolute than those infringed by precluding review and because the harm caused by permitting immediate review is greater than the harm created by permitting full review later, we feel that we are justified in drawing the line where we do.

The double jeopardy clause protects a variety of interests; among them a criminal defendant’s interest “in avoiding multiple prosecutions even where no final determination of guilt or innocence has been made.”³² This is an interest which is “wholly unrelated to the propriety of any subsequent conviction.”³³ It is an interest in avoiding the rigors and embarrassment of a second trial.³⁴ However, the defendant’s interest in avoiding the rigors of a second trial is not absolute. For example, his interest in this regard can be overridden by society’s interest in seeing that the prosecution has at least “one complete opportunity to convict those who have violated its laws.”³⁵ Thus, a judge may discharge a hung jury and require the defendant to submit to a second trial without violating the double jeopardy clause.³⁶ Similarly, it seems logical to conclude that Congress, in adopting the section 1291 finality requirement, determined that society’s interest in avoiding the disruptions caused by interlocutory appeals involving the sufficiency of the evidence³⁷ outweighed the defendant’s interest in ensuring that his less-than-absolute right would not be infringed without appellate review.

However, the double jeopardy clause also protects interests which are more absolute. These include the defendant’s interest in avoiding an erroneous conviction. In this respect the double jeopardy clause prevents the prosecution “from honing its trial strategies and perfecting its evidence through successive attempts at conviction.”³⁸ This prohibition seems to be absolute because it lies “at the core of the Clause’s protections.” ³⁹ In light of the above, and in light of the Supreme Court’s opinion in Burks v. United States;⁴⁰ it appears that the double jeopardy clause is violated if the government has a full and fair opportunity to convict a defendant, fails to produce enough evidence to sustain its constitutional burden to present legally sufficient evidence, and is then given another opportunity to obtain a conviction. The possibility that this constitutional violation would occur would increase if we eliminated Richardson’s right to appellate review of the sufficiency issue because only one (the trial) court would be evaluating the sufficiency of the evidence produced at the first trial. We find no societal interest which justifies this infringement on Richardson’s rights.

As noted above, it cannot be argued that the double jeopardy clause requires the appellate court to review Richardson’s insufficiency claim after the second trial.⁴¹ But at the same time, while it seems logical to conclude that the need to avoid the disruptions caused by interlocutory appeals in criminal cases justifies postponing review of Richardson’s insufficiency claim (thereby increasing the possibility that Richardson’s less-than-absolute interest in avoiding the rigors of a second trial will be infringed), we refuse to believe, at least in the absence of clear evidence to the contrary, that Congress intended to preclude review of that issue when the result would have been to increase the likelihood that Richardson’s absolute right to avoid an unconstitutional conviction would be violated.

Therefore, having rejected the other available alternatives and having satisfied ourselves that the interpretation we adopt is consistent with the Supreme Court’s application of the Cohen exception in Abney, we conclude that Richardson cannot appeal the trial court’s ruling on his insufficiency and double jeopardy claims until a final judgment is entered against him.

III. Conclusion

Richardson presents us with an appeal from the trial court’s denial of two motions based on his argument that the evidence presented against him at his criminal trial was insufficient. This appeal, however, comes before a final judgment has been entered against him. Because a review of the issue at the base of the claims would undermine the policy behind the finality requirement of section 1291, we hold that we cannot review those claims at this time, realizing full well that the trial court may have erred in its rulings and that as a result Richardson may be required to bear the rigors of an unnecessary second trial. As the Supreme Court has noted:

Bearing the discomfiture and cost of a prosecution for crime even by an innocent person is one of the painful obligations of citizenship. The correctness of a trial court’s rejection even of a constitutional claim made by the accused in the process of prosecution must await his conviction before its reconsideration by an appellate tribunal.⁴²

Accordingly, Richardson’s appeal is dismissed.

It is so ordered.

1 . 21 U.S.C. § 846 (1976).

2 . Id. § 841(a)(1).

3 . Dissenting op. at 1089.

4 . 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978).

5 . Appellant’s Brief at 33 (emphasis added).

6 . Abney v. United States, 431 U.S. 651, 656, 97 S.Ct. 2034, 2038, 52 L.Ed.2d 651 (1977) (citing McKane v. Durston, 153 U.S. 684, 14 S.Ct. 913, 38 L.Ed. 867 (1894)).

7 . Section 1291 provides:

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.

8 . “Final judgment in a criminal case means sentence. The sentence is the judgment.” Parr v. United States, 351 U.S. 513, 518, 76 S.Ct. 912, 916, 100 L.Ed. 1377 (1956) (quoting Berman v. United States, 302 U.S. 211, 212, 58 S.Ct. 164, 165, 82 L.Ed. 204 (1937)).

9 . 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949).

10 . 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977).

11 . Abney, 431 U.S. at 658, 97 S.Ct. at 2039 (quoting Cohen, 337 U.S. at 546, 69 S.Ct. at 1225).

12 . Id.

13 . Id.

14 . United States v. Ellis, 646 F.2d 132, 134 (4th Cir.1981). See also United States v. Becton, 632 F.2d 1294, 1297 (5th Cir.1980), cert. denied, 454 U.S. 837, 102 S.Ct. 141, 70 L.Ed.2d 117 (1981).

15 . Jackson v. Virginia, 443 U.S. 307, 313-16, 99 S.Ct. 2781, 2785-2787, 61 L.Ed.2d 560 (1979).

16 . Abney, 431 U.S. at 658, 97 S.Ct. at 2039.

17 . United States v. Balano, 618 F.2d 624, 632 n. 13 (10th Cir.1979), cert. denied, 449 U.S. 840, 101 S.Ct. 118, 66 L.Ed.2d 47 (1980); United States v. Bodey, 607 F.2d 265, 267-68 (9th Cir.1979); United States v. Wilkinson, 601 F.2d 791, 794-95 (5th Cir.1979). The dissent challenges our assertion that the sufficiency issue is ultimately reviewable, implying that the paucity of precedent to support that position is telling. Dissenting op. at 1093. However, as the dissent notes, there are five federal courts of appeals’ decisions which support our position in dicta and three federal circuits which have held that our assertion is correct. On the other hand, the dissent is able to cite only C.J.S. and a 1953 Alabama state court case which quotes C.J.S. as support for its position. Dissenting op. at 1093.

18 . Appellee’s Brief at 14 n. 3. The dissent reproves us because we suggest that appellate courts can vindicate the constitutional rights of a criminal defendant after he has been convicted. Dissenting op. at 1088-1089. See also id. at 1086-1087, 1094. As a matter of indisputable fact, that is what appellate courts do all the time. It seems that the real cause of this displeasure is not our decision, but decisions made by other institutions. The dissent may really be expressing disapproval of Congress’ decision to give a criminal defendant the right to appeal his conviction since every time an appellate court reverses a criminal conviction it sets the “guilty” criminal free, or, in some cases, creates the possibility that he will be set free. The dissent may also disagree with the policy behind the double jeopardy clause. In Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), the Supreme Court held that the double jeopardy clause required that the defendant be set free despite his earlier conviction. Finally, the dissent may have a basic disagreement with the rule reiterated by the Supreme Court in Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), that regardless of what the jury does, a criminal defendant is not guilty unless the prosecution presents evidence from which a rational juror could conclude beyond a reasonable doubt that the defendant had committed the crime. In any event, we refuse to shy away from the result we feel is compelled by law merely because it permits a criminal defendant to argue at the appellate level after a second trial that his conviction was obtained under constitutionally impermissible circumstances.

19 . United States v. Ellis, 646 F.2d 132, 135 (4th Cir.1981); United States v. Becton, 632 F.2d 1294, 1297 (5th Cir.1980), cert. denied, 454 U.S. 837, 102 S.Ct. 141, 70 L.Ed.2d 117 (1981).

20 . United States v. McQuilkin, 673 F.2d 681 (3d Cir.1982). In McQuilkin appellants appealed from a district court order vacating their criminal contempt convictions before a magistrate because the first trial was improperly conducted without a jury, and remanding for a new trial. It differed, therefore, from Becton, Ellis, and the present case in that it involved a new trial after conviction by a magistrate (but not by the court), rather than after jury failure to reach a verdict. We consider that distinction inconsequential to the jurisdictional issue; the essential elements of (1) a second trial before final judgment was entered and (2) the asserted inadequacy of evidence at the first trial were present.

21 . The different results reached by the three courts reveal the different manner in which Abney can be interpreted. In Abney the Supreme Court held that “pretrial orders rejecting claims of former jeopardy, such as that presently before us,” fall within the Cohen exception to the final judgment rule. 431 U.S. at 662, 97 S.Ct. at 2041. The Fourth and Fifth Circuits read Abney as a decision permitting application of the Cohen exception to a double jeopardy claim only when the issues presented by that claim meet all three of the Cohen requirements. Ellis, 646 F.2d at 134-35; Becton, 632 F.2d at 1296-97. The Third Circuit, on the other hand, would read Abney more broadly— as authority for immediate appeal of all double jeopardy claims, focusing on “the nature of the right protected.” McQuilkin, 673 F.2d at 684 (emphasis added). Although there is language in Abney which can be read as suggesting that the need to protect a defendant’s right to avoid the rigors and embarrassment of an unnecessary second trial is so great that all double jeopardy claims are immediately appealable, see Abney, 431 U.S. at 660-62, we refuse to read the decision that broadly. The argument that the nature of the right involved in a double jeopardy claim requires an appellate court to immediately review all denials of a double jeopardy claim is in reality an argument that the double jeopardy clause requires immediate appellate consideration of such claims. In order to accept that argument, the Supreme Court would have had to overrule the traditional rule that a criminal defendant has no constitutional right to an appeal. See supra text at note 6. We do not think the Court intended to accomplish such a radical change in the law when it rendered its decision in Abney, especially since it expressly reaffirmed the rule in that case. Abney, 431 U.S. at 656, 97 S.Ct. at 2038.

22 . See supra, text at notes 3-5.

23 . See supra, text at notes 14 — 18.

24 . The dissent’s discussion of when a double jeopardy claim “exists,” Dissenting op. at 1088-1089, tends to obfuscate the real issue being decided. Richardson’s double jeopardy claim does not exist on appeal for the reason that, separated from his insufficiency claim, it is meaningless. Richardson’s double jeopardy claim is composed of two arguments: (1) that the evidence presented at the first trial was insufficient, and (2) that the prosecution’s failure to produce sufficient evidence bars retrial. Since we cannot accept the first argument at this time (because the trial court’s adverse ruling on the issue cannot now be reviewed), the claim is deprived of one of its essential elements. Whether the claim continues to exist in some metaphysical sense is beside the point.

25 . The dissent fails to explain how it would distinguish Richardson’s insufficiency claim from his double jeopardy claim in terms of appealability. Since the legal issue at the base of both claims is precisely the same, i.e., whether the evidence presented at the first trial was legally sufficient, we fail to see how the two claims can be distinguished under Abney, which focused on the collateral nature of the legal issue involved. See Abney, 431 U.S. at 658, 97 S.Ct. at 2039.

26 . DiBella v. United States, 369 U.S. 121, 124, 82 S.Ct. 654, 656, 7 L.Ed.2d 614 (1962).

27 . Cephus v. United States, 324 F.2d 893, 895 (D.C.Cir.1963). See also United States v. Young, 544 F.2d 415, 416 (9th Cir.), cert. denied, 429 U.S. 1024, 97 S.Ct. 643, 50 L.Ed.2d 626 (1976); Gilmore v. United States, 264 F.2d 44 (5th Cir.), cert. denied, 359 U.S. 994, 79 S.Ct. 1126, 3 L.Ed.2d 982 (1959).

28 . See text at notes 14-18.

29 .Keerl v. Montana, 213 U.S. 135, 29 S.Ct. 469, 53 L.Ed. 734 (1909); Dreyer v. Illinois, 187 U.S. 71, 23 S.Ct. 28, 47 L.Ed. 79 (1902); Logan v. United States, 144 U.S. 263, 12 S.Ct. 617, 36 L.Ed. 429 (1892); United States v. Perez, 22 U.S. (9 Wheat.) 579, 6 L.Ed. 165 (1824)).

30 . The dissent reprimands us for our disregard of Richardson’s rights. Dissenting op. at 1086-1087. Such a charge is ironic since it is advanced in an opinion which advocates the adoption of both the second and third alternatives outlined above. We hold that appellate consideration of Richardson’s insufficiency and double jeopardy claims must be delayed. The dissent would completely preclude review of the former claim and render meaningless any review of the latter. One need not wonder which result Richardson would prefer.

31 . Tibbs v. Florida, 457 U.S. 31, 40-41,102 S.Ct. 2211, 2218, 72 L.Ed.2d 652 (1982) (quoting Burks v. United States, 437 U.S. 1, 11, 98 S.Ct. 2141, 2147, 57 L.Ed.2d 1 (1978)). See also United States v. DiFrancesco, 449 U.S. 117, 128, 101 S.Ct. 426, 432, 66 L.Ed.2d 328 (1980).

32 . United States v. Scott, 437 U.S. 82, 92, 98 S.Ct. 2187, 2194, 57 L.Ed.2d 65 (1978).

33 . Abney, 431 U.S. at 661, 97 S.Ct. at 2041.

34 . Id. at 661-62, 97 S.Ct. at 2041-2042.

35 . Arizona v. Washington, 434 U.S. 497, 509, 98 S.Ct. 824, 832, 54 L.Ed.2d 717 (1978).

36 . Keerl v. Montana, 213 U.S. 135, 29 S.Ct. 469, 53 L.Ed. 734 (1909); Dreyer v. Illinois, 187 U.S. 71, 23 S.Ct. 28, 47 L.Ed. 79 (1902); Logan v. United States, 144 U.S. 263, 12 S.Ct. 617, 36 L.Ed. 429 (1892); United States v. Perez, 22 U.S. (9 Wheat.) 579, 6 L.Ed. 165 (1824).

37 . The delay caused by appellate review of a claim based on the sufficiency of the evidence could be extreme since the entire trial record would have to be reviewed before a decision could be made. Such delays are especially undesirable in criminal proceedings. See Dibella v. United States, 369 U.S. 121, 126, 82 S.Ct. 654, 657, 7 L.Ed.2d 614 (1962) (“the delays and disruptions attendant upon intermediate appeal are especially inimical to the effective and fair administration of the criminal law.”); Cobbledick v. United States, 309 U.S. 323, 325, 60 S.Ct. 540, 541, 84 L.Ed. 783 (1940) (“encouragement of delay is fatal to the vindication of the criminal law”).

38 . Tibbs, 102 S.Ct. at 2218.

39 . Id. If a defendant is unnecessarily required to go through a second trial his injury is the resultant “embarrassment, expense ... ordeal, [and] continuing state of anxiety and insecurity.” Abney, 431 U.S. at 661-62, 97 S.Ct. at 2041-2042 (quoting Green v. United States, 355 U.S. 184, 187-88, 78 S.Ct. 221, 223-224, 2 L.Ed.2d 199 (1957)). On the other hand, if the defendant is unjustifiably convicted at the second trial the injury increases in magnitude because he is then subject to the punishment prescribed for the crime. The Supreme Court long ago observed that “[i]t is the punishment that would legally follow the second conviction which is the real danger guarded against by the Constitution.” Ex parte Lange, 85 U.S. (18 Wall.) 163, 173, 21 L.Ed. 872 (1874). Thus, it appears that while the defendant’s interest in avoiding the rigors of the second trial may not be absolute (see supra, text at notes 32-37), his interest in avoiding an unconstitutional conviction is.

40 . 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978).

41 . See supra, text at note 6.

42 . Cobbledick v. United States, 309 U.S. 323, 325-26, 60 S.Ct. 540, 541-542, 84 L.Ed. 783 (1940).