Burks v US Brief for the Petitioner

    The Supreme Court 
of the United States

David Wayne Burks
versus

United States of America

Petition and Briefs

Law Reprints
Criminal Law Series
Volume 9, no. 16 
1977/1978 Term



Supreme Court of tfjr ®mtrb jg>tatrs
OCTOBER TERM. 1977

IN THE

No. 76-6528

DAVID WAYNE BURKS,
Petitioner,

v.

UNITED STATES OF AMERICA

ON WRIT OF CERTIORARI TO THE UNITED STATES 
COURT OF APPEALS FOR THE SIXTH CIRCUIT

BRIEF FOR THE PETITIONER

BART C. DURHAM, III 
1104 Parkway Towers 
Nashville, Tennessee 37219 

Attorney for Petitioner



TABLE OF CONTENTS
Page

OPINIONS BELOW ........................................................................... 1
JURISDICTION ...................................................................................1
CONSTITUTIONAL, STATUTORY AND RULES 

PROVISIONS INVOLVED ............................................................2
QUESTIONS PRESENTED ............................................................2
STATEM ENT...................................................................................... 3
SUMMARY OF ARGUMENT ........................................................ 3
ARGUMENT

INTRODUCTION
The Bryan Rule and Its Historical Antecedents ......................... 4

I. A RETRIAL AFTER A REVERSAL FOR 
INSUFFICIENT EVIDENCE VIOLATES 
THE DOUBLE JEOPARDY CLAUSE OF
THE CONSTITUTION ........................................................8
A. Reversal for Insufficient Evidence Should

Result in Acquittal Because Such Reversal 
Differs Significantly from Reversal for Pro­
cedural Error................................................................. 10

B. The Petitioner Did Not Waive His Right to an
Acquittal by Taking an Appeal...................................... 13

C. The Petitioner Did Not Waive His Right to an
Acquittal by Asking for a New Trial............................ 14

II. ASSUMING THERE IS NO VIOLATION OF 
THE DOUBLE JEOPARDY CLAUSE, THE 
PETITIONER SHOULD BE ACQUITTED 
UNDER 28 U.S.C. 2106 BECAUSE JUST
AND APPROPRIATE ........................................................ 16

CONCLUSION .................................................................................19

TABLE OF AUTHORITIES
Cases:
Abney v. United States, No. 75-6521, decided June 9,

1977 ................................................................................................. 4
Ball v. United States, 163 U.S. 662 ..................................  5,6,8,9,13

(l)



Bryan v. United States, 338 U.S. 552....................................passim
Fong Foo v. United States, 369 U.S. 141........................................8
Forman v. United States, 361 U.S. 416........................................7,9
Green v. Massey, 546 F.2d 51............................................................7
Green v. United States, 355 U.S. 1 8 4 ..........................4,5,9,14,15,16
Johnson v. Zerbst, 304 U.S. 4 58 ...................................................... 14
Kepner v. United States, 195 U.S. 1 0 0 ..........................................14
Louisiana ex rel. Francis v. Resweber, 329

U.S. 459 .......................................................................................... 6
McKane v. Durston, 153 U.S. 684 .................................................... 4
Murphy v. Massachusetts, 177 U.S. 155 ........................................13
People v. Brown, 241 N.E.2d 653 .......................................... 7,15,17
Reetz v. Michigan, 188 U.S. 505........................................................ 4
Sapir v. United States, 348 U.S. 373 .................................. 6,7,14,15
Sumpter v. DeGroote, C.A. 7, No. 76-1849, decided

April 1, 1977............................................................................... 7,8
Trono v. United States, 199 U.S. 521 ..............................................6
United States v. Bass, 490 F.2d 846............................................... 18
United States v. Dotson, 440 F.2d 1224 ......................................... 7
United States v. Fusco, 427 F.2d 3 6 1 ............................................. 7
United States v. Howard, 432 F.2d 1188 ....................................... 7
United States v. Robinson, 545 F.2d 301 ....................................... 7
United States v. Rosenbarger, 536 F.2d 715.............................. 7,18
United States v. Smith, 404 F.2d 720.................................................3
United States v. Smith, 437 F.2d 5 3 8 .............................................18
United States v. Tateo, 377 U.S. 463....................................  7,16,17
United States v. Wiley, 517 F.2d 1212........................................ 7,17
United States v. Williams, 348 F.2d 451, certiorari

denied, 384 U.S. 1022................................................................... 7
United States v. Wilson, 420 U.S. 332.......................................... 6,8
Yates v. United States, 354 U.S. 298 ............................................... 7

(ii)



(id)

Constitution, statutes, and rules:
United States Constitution, Fifth Amendment........................2,3,17,18
28 U.S.C. 1254(1)...................................................................... 2
28 U.S.C. 2106............................................................... passim
Rule 29(a), Federal Rules of Criminal Pro­

cedure ................................................................................. 2,3,6,8,14
Miscellaneous:
Cahan, Granting the State a New Trial After an 

Appellate Reversal for Insufficient Evidence, 157 111.
B.J. 448 (1969)......................................................................... 7,18

Fisher, Double Jeopardy: Six Common Boners 
Summarized, 15 U.C.L.A. Law Review 81-84 
(1967)................................................................................................7

Mayers and Yarbrough, Bis Vexaris: New Trials and 
Successive Prosecutions, 74 Harv. L. Rev.
1 (1960).....................................................................................  7,13

8 Moore’s Federal Practice 29.09[2] at 29-57
(1976)................................................................................................7

Note, Double Jeopardy: A New Trial After Appellate 
Reversal for Insufficient Evidence, U. Chi. L. Rev.
365 (1964)............................................................................  7,9.10

Thompson, Reversals for Insufficient Evidence: The 
Emerging Doctrine of Appellate Acquittal, 8 Ind. L.
Rev. 497 (1975)..................................................................  7,9,11

Wright, Federal Practice and Procedure, §470,
272-273 7



Supreme Court of tljeUnitrti States*
OCTOBER TERM, 1977

IN THE

No. 76-6528

DAVID WAYNE BURKS,
Petitioner,

UNITED STATES OF AMERICA

ON WRIT OF CERTIORARI TO THE UNITED STATES 
COURT OF APPEALS FOR THE SIXTH CIRCUIT

BRIEF FOR THE PETITIONER

OPINIONS BELOW

The judgment of the district court was entered February 25, 
1976 (A. 13). The order of the district court denying the motion 
for new trial was entered March 12, 1976 (A. 18). The opinion 
of the United States Court of Appeals for the Sixth Circuit was 
filed December 30, 1976 and is reported at 547 F.2d 968. 
Petitions to rehear by both the United States and the defendant 
were denied February 8, 1977. (A. 159-160).

JURISDICTION

The judgment of the United States Court of Appeals for the 
Sixth Circuit was entered December 30, 1976. Petitions to



2

rehear filed by both petitioner and respondent were denied 
February 8, 1977. The petition for certiorari was filed April 11, 
1977. This Court’s jurisdiction is invoked under 28 U.S.C. 
1254(1).

CONSTITUTIONAL, STATUTORY AND  
RULES PROVISIONS INVOLVED

The Fifth Amendment to the Constitution of the United States 
provides in pertinent part:

No person shall . . .  be subject for the same offense to be 
twice put in jeopardy of life or limb . . .
Rule 29(a) of the Federal Rules of Criminal Procedure 
provides:
Motion Before Submission to Jury. Motions for directed 
verdict are abolished and motions for judgment of acquittal 
shall be used in their place. The court on motion of a 
defendant or of its own motion shall order the entry of 
judgment of acquittal of one or more offenses charged in the 
indictment or information after the evidence on either side is 
closed if the evidence is insufficient to sustain a conviction 
of such offense or offenses . . .
Title 28, United States Code provides:
§2106. Determination

The Supreme Court or any other court of appellate 
jurisdiction may affirm, modify, vacate, set aside or reverse 
any judgment, decree, or order of a court lawfully brought 
before it for review, and may remand the cause and direct 
the entry of such appropriate judgment, decree, or order, or 
require such further proceedings to be had as may be just 
under the circumstances.

QUESTIONS PRESENTED

1. Whether a retrial after a reversal for insufficient evidence 
violates the Double Jeopardy Clause of the Constitution.

2



3

2. Whether, assuming there is no violation of the Double 
Jeopardy Clause, the petitioner should be acquitted under 28 
U.S.C. 2106 because just and appropriate.

STATEMENT

The petitioner Burks was charged with armed bank robbery in 
the Middle District of Tennessee. The petitioner entered a plea 
of not guilty by reason of insanity. At a jury trial in Nashville, 
two medical witnesses, a psychiatrist and psychologist, testified 
for the government. The psychiatrist could not give an opinion 
and the psychologist was ever asked for his opinion as to the 
sanity of the petitioner. Two psychiatrists and a psychologist 
called as witnesses by the petitioner testified he was legally 
insane within the meaning of the Smith test used in the Sixth 
Circuit. United States v. Smith, 404 F.2d 720 (C.A. 6).

A timely motion for a judgment of acquittal under Rule 29(a), 
F. R. Crim. P., was made at the close of all the proof and denied. 
(A. 145) The petitioner was found guilty and received a twenty 
year sentence.

The United States Court of Appeals for the Sixth Circuit 
found that the evidence was insufficient to sustain the verdict and 
reversed. Citing Bryan v. United States, 338 U.S. 552 and 28 
U.S.C. 2106, the case was remanded to the district court to 
determine from a balancing of the equities whether a judgment of 
acquittal should be entered or a new trial ordered. This Court 
granted Burks’ petition for certiorari June 13, 1977.

SUMMARY OF ARGUMENT

Appellate reversals for new trials after a finding of insufficient 
evidence to sustain the conviction violate the Double Jeopardy 
Clause of the Fifth Amendment. The Court has never given 
adequate consideration to the double jeopardy aspect of a 
reversal for insufficient evidence. Bryan v. United States, 338 g



4

U.S. 522, the leading case, failed to differentiate between 
appellate reversals for trial errors, for which there is a strong 
public policy favoring retrials, and reversals for insufficient 
evidence for which there is logically a strong public policy 
against retrials. To the extent that Bryan is based on the fact that 
a defendant “waives” his right to an acquittal for either lack of 
evidence or by seeking alternatively a new trial, that waiver 
doctrine was put to rest once and for all by Green v. United 
States, 355 U.S. 184.

In the event the Court does not wish to raise appellate 
reversals in the federal courts for insufficient evidence to a 
constitutional level, the Court under 28 U.S.C. 2106 should 
order the case dismissed as just and appropriate.

ARGUMENT

Introduction
The Bryan Rule and Its Historical Antecedents

“ [I]t is well settled that there is no constitutional right to an 
appeal.” McKane v. Durston, 153 U.S. 684. 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.1 As the Court described 
this period in Reetz v. Michigan, 188 U.S. 505:

‘Trials under the Federal practice for even the gravest 
offenses ended in the trial court, except in cases where two 
judges were present and certified a question of law to this 
Court. Id., at 508.’
Abney v. United States, No. 75-6521, decided June 9, 
1977.

‘“ [3] Appeals as of right in criminal cases were first permitted in 1889 when 
Congress enacted a statute allowing such appeals ‘in all cases of conviction of 
crime the punishment of which provided by law is death.’ Act of Feb. 6, 1889, 
25 Stat. 656. A general right of appeal in criminal cases was not created until 
1911. Act of March 3. 1911, 36 Stat. 1133.”4



5

Writing in Green v. United States, 355 U.S. 184, Justice 
Black said:

The constitutional prohibition against ‘double jeopardy’ 
was designed to protect an individual from being subjected 
to the hazards of trial and possible conviction more than 
once for an alleged offense. In his Commentaries, which 
greatly influenced the generation that adopted the Constitu­
tion, Blackstone recorded:

. . the plea of auterfoits acquit, or a former 
acquittal, is grounded on this universal maxim of the 
common law of England, that no man is to be brought 
into jeopardy of his life more than once for the same 
offence.'
Substantially the same view was taken by this Court in 

Ex parte Lange, 18 Wall 163, at 169, . . . :
‘The common law not only prohibited a second 

punishment for the same offence, but it went further 
and forbid 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.’

The underlying idea, one that is deeply ingrained in at 
least the Anglo-American system of jurisprudence, is 
that the State with all its resources and power should not 
be allowed to make repeated attempts to convict an 
individual for an alleged offense, 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.

The relationship between the double jeopardy clause and 
retrial after appellate reversal began with Ball v. United States, 
163 U.S. 662, 672, when it was held a defendant could be retried

because it is quite clear that a defendant, who procures a 
judgment against him upon an indictment to be set aside, 
may be tried anew upon the same indictment or upon 
another indictment, for the same offense of which he had 
been convicted.

Ball and its progeny rested on the theory that the defendant by
5



6

asking for a new trial had “waived” a double jeopardy defense. 
Trono v. United States, 199 U.S. 521. The plurality opinion in 
Trono said:

We do not agree to the view that the accused has the 
right to limit his waiver as to jeopardy, when he appeals 
from a judgment against him. As the judgment stands 
before he appeals, it is a complete bar to any further 
prosecution for the offense set forth in the indictment..  .
No power can wrest from him the right to so use that 
judgment, but if he chooses to appeal from it . . .  he 
thereby waives, if successful, his right to avail himself of 
the former acquittal of the greater offense. 199 U.S. at 
533.

Ball involved a reversal for a defect in the indictment. A 
comprehensive history of the Double Jeopardy Clause is given in 
United States v. Wilson, 420 U.S. 332.

This Court first considered the constitutionality of a reversal 
for a new trial after an appellate reversal for insufficient evidence 
in Bryan v. United States, 338 U.S. 552. After first deciding that 
28 U.S.C. 2106 took precedence over Rule 29(a), F. R. Crim. 
P., petitioner’s double jeopardy argument was given short shrift:

Petitioner’s contention that to require him to stand trial 
again would be to place him twice in jeopardy is not 
persuasive. He sought and obtained the reversal of his 
conviction, assigning a number of alleged errors on 
appeal, involving denial of his motion for judgment of 
acquittal. ‘. . . where the accused successfully seeks 
review of a conviction, there is no double jeopardy upon 
a new trial.’ Louisiana ex rel. Francis v. Resweber, 329 
U.S. 459, 462. See Trono v. United States, 199 U.S. 
521, 533, 534. 338 U.S. at 560.

The two cases cited in support of the Court’s holding involved 
reversals for procedural errors, rather than for insufficiency of 
evidence. The holding in Bryan has been considered tangentially 
but never directly in Sapir v. United States, 348 U.S. 373,2

2Brief per curiam order that indictment be dismissed after appellate reversal 
for insufficient evidence. Impossible to tell if dismissal on constitutional 
grounds or §2106. Mr. Justice Douglas in a concurring opinion noted that a 
new trial would be double jeopardy. 348 U.S. at 374.

6



7

Yates v. United States, 354 U.S. 298,l * 3 and Forman v. United 
States, 361 U.S. 416.4 See also United States v. Tateo, 377 
U.S. 463, 466.5 The holding in Bryan has been criticized by 
every court or commentator which has attempted an analysis.6

Many circuits have not repudiated Bry’an but have strictly 
limited its application to cases wherein the accused requested a 
new trial in the district court or on appeal. These circuits, under 
the statutory authority of 28 U.S.C. 2106, have established the 
policy of directing acquittals following reversals for insufficiency 
of the evidence.7

lBryan reaffirmed without discussion. “[Wle would no doubt be justified in
refusing to order acquittal even where the evidence might be deemed palpably
insufficient, particularly since petitioners have asked in the alternative for a 
new trial as well as for acquittal.” 354 U.S. at 328.

4Attempt to reconcile Bryan and Sapir. Validity of Sapir implicitly 
recognized.

sBryan apparently reaffirmed by way of citation.
6Sumpter v. DeGroote, C.A. 7, No. 76-1849, decided April 1, 1977; United 

States v. Wiley, 517 F.2d 1212, 1215-1217 (C.A. D.C. 1975); People v. 
Brown, 99 111. App. 2d 281, 241 N.E.2d 653, 661-62 (1968); C. Wright, 
Federal Practice and Procedure, §470, at 272-273; Thompson, Reversals for 
Insufficient Evidence: The Emerging Doctrine o f Appellate Acquittal, 8 Ind. 
L. Rev. 497, 507-510 (1975); Note, Double Jeopardy: A New Trial After 
Appellate Reversal for Insufficient Evidence, U. Chi. L. Rev. 365, 367 
(1964); Cahan, Granting the State a New Trial After an Appellate Reversal 
for Insufficient Evidence, 57 111. B.J. 448, 452-455 (1969); Mayers and 
Yarbrough, Bis Vexaris: New Trials and Successive Prosecutions, 74 Harv. L. 
Rev. 1, 6-7, 19-22 (1960); 8 Moore’s Federal Practice, §29.09(2] at 29-57 
(1976); Fisher, Double Jeopardy: Six Common Boners Summarized, 15 
U.C.L.A. Law Review 81-84 (1967).

7Green v. Massey, 546 F.2d 51 (C.A. 5); United States v. Howard, 432 
F.2d 1188 (C.A. 9); United States v. Wiley, 517 F.2d 1212, 1215-1221 (C.A. 
D.C. 1975); United States v. Dotson, 440 F.2d 1224, 1225 (C.A. 10); United 
States v. Howard, 432 F.2d 1188, 1191 (C.A. 9); United States v. Williams, 
348 F.2d 451 (C.A. 4), cert, denied, 384 U.S. 1022. See also. United States v. 
Fusco, 427 F.2d 361, 363 (C.A. 7); Wright, supra, note 6. at 272; United 
States v. Robinson, 545 F.2d 301. 305, n.5 (C.A. 2).

The Sixth Circuit has been inconsistent. This case was remanded for a 
possible new trial. In another case, United States v. Rosenbarger, 536 F.2d 
715, 721, after a reversal for insufficient evidence, the Sixth Circuit said: “To 
allow the Government on remand to submit additional proof. . . would violate 
the prohibition against double jeopardy contained in the Constitution. '



8

I.

A RETRIAL AFTER A REVERSAL FOR IN­
SUFFICIENT EVIDENCE VIOLATES THE 
DOUBLE JEOPARDY CLAUSE OF THE 
CONSTITUTION.

Bryan has been unanimously criticized insofar as it dealt with 
the double jeopardy issue.8 The double jeopardy question received 
only cursory consideration in the last paragraph of the twelve- 
paragraph opinion.

Judge Bauer for the Seventh Circuit in Sumpter v. DeGroote, 
supra, wrote:

Moreover, rather than serving the ‘sound administration 
of justice,’ we believe the Ball rule operates in practice as 
an engine of inequity when applied in cases such as Bryan. 
Unlike reversals due to procedural errors of law that impair 
effective presentation of the defendant’s case, reversals 
based on the failure of the prosecution’s proof represent the 
judgment of an appellate court that the defendant was 
entitled to a directed acquittal at trial. By subjecting 
defendants who win such appellate reversals to retrial, 
Bryan serves to heighten rather than mollify disparities 
inherent in our criminal justice system, for, had the 
defendants been before other trial judges, they may well 
have received the directed acquittals to which they were 
entitled—acquittals from which the prosecution would have 
no appeal. Fong Foo v. United States, 369 U.S. 141 
(1962). By permitting defendants similarly situated with 
respect to their right to a directed acquittal to be treated 
differently, Bryan works to undermine rather than promote 
the fair and impartial administration of criminal justice.

In summary, we believe that the premises of the fairness 
rationale for the Ball rule adopted in Wilson—the societal 
interest in punishing the guilty and the need to promote the 
sound administration of justice—do not require the rule’s 
application in a case such as this. Sumpter was, by the

The primary issue in Bryan was whether Rule 29(a), F. R. Crim. P. takes 
precedence over 28 U.S.C. 2106. Held, §2106 was controlling.

For authorities suggesting Bryan should be re-examined see n.6, supra.



9

Indiana Supreme Court’s own admission, not proven guilty 
of the crime of prostitution as defined by the Indiana law 
applicable at the time of her arrest and trial. The State, 
having been given an opportunity to vindicate its interest in 
trying her, had failed to establish the validity of its interest 
in punishing her. To permit the State a second bite at the 
apple in these circumstances would not only inteiject 
inequity into the administration of criminal justice but also 
serve to condone and perhaps perpetuate careless prose­
cutorial trial preparation and practice. (Footnotes omitted.)
It is said in Thompson, n.6, supra, at 506-507, 510:

The Court in Bryan failed to note that the earlier cases 
upon which it relied involved reversals for procedural 
irregularities, and the evidence in those cases was sufficient 
to sustain the judgments. Without considering this distinc­
tion, the Court summarily applied the rule of Ball that a 
defendant who secures an appellate reversal of his 
conviction may not claim double jeopardy as a defense to 
retrial — regardless of the reason for reversal.

* * *

Moreover, if the Court were faced with the issue again, it 
is doubtful, at least in a federal case, whether it would 
continue to follow the Bryan rationale. The logic of the 
state court decisions and the emerging doctrine of appellate 
acquittal which has developed after the decision in Forman 
[v. United States, supra| is irrefutable. And the Court has 
not been reluctant in recent years to expand the application 
of the double jeopardy principle.
As said in Comment, 31 U. Chi. L. Rev. 365, n.6, supra:

The cursory treatment given the double jeopardy problem 
in the Bryan case reveals the Court's feeling that no new, 
significant double jeopardy question had been presented.
Reversals for insufficient evidence as in Bryan present a 

significantly different double jeopardy question than do reversals 
for procedural errors. Furthermore, the waiver rationale of 
Bryan was rejected in Green v. United States, 355 U.S. 184.

9



10

A. Reversal for Insufficient Evidence Should Result 
In Acquittal Because Such Reversal Differs 
Significantly from Reversal for Procedural Error.

It was said in Comment, 31 U. Chi. L. Rev. 365, 371, 372:
[T]he considerations which justify a new trial after a 

reversal for error are lacking where the reversal is for lack of 
evidence. Instead of a presumption that the burden of proof 
of the prosecution has probably been met, the appellate 
court is specifically holding that the burden has not been 
met. Society should have no more fear of releasing such a 
defendant than of releasing a defendant who has been 
acquitted by a jury, perhaps even less since a jury acquittal 
may be based on error or on an improper weighing of the 
evidence. Yet in the federal system and in most states, no 
appeal is allowed the state after an acquittal.

Furthermore, there is no reason to fear that an appellate 
court judge, deprived of the new trial alternative, would 
affirm a conviction where he now would reverse and grant a 
new trial for insufficient evidence. In the federal courts it is 
not enough for a judge to feel that on his reading of the 
record he would have voted for acquittal. ‘It is not for [a 
reviewing court] . . .  to weigh the evidence or to determine 
the credibility of witnesses. The verdict of a jury must be 
sustained if there is substantial evidence, taking the view 
most favorable to the Government, to support it.’ Thus 
where a judge now would be willing to reverse, he should 
have no objection to acquitting. He certainly should not 
prefer the conviction of a defendant where he not only 
would vote for acquittal himself but also thinks that there is 
no substantial evidence to support the trial court conviction.

* * *

No undue burden is imposed on society by releasing 
those defendants whose convictions have been reversed for 
lack of evidence. The oppression and harassment which the 
double jeopardy clause was designed to prevent is clearly 
present in a new trial following a reversal for insufficient 
evidence. For in the insufficient evidence case an appellate 
court is in essence saying, ‘Well, the prosecution did not 
prove you guilty this time but they can have another 
chance.’ Although it would not be necessary for the

10



Supreme Court to raise the distinction between reversal for 
error and reversal for insufficient evidence to the stature of a 
constitutional principle—invocation of the Court’s super­
visory power might be considered more appropriate—the 
Court should explicitly recognize that the same considera­
tions which prohibit a new trial where an accused has been 
acquitted at trial apply with equal force following an 
appellate reversal for insufficient evidence.
It is said in Thompson, Reversals for Insufficient Evidence, 

n.6 supra, at 501-502, 513, 514-515, 517-518:
The arguments favoring application of the double 

jeopardy clause to appellate reversals for insufficient 
evidence are compelling. At the first trial the State 
exercised its opportunity to convict the accused and, as a 
matter of law, the evidence failed to establish guilt. Should 
the State be given the opportunity to buttress its case at a 
second trial or, for harassment only, seek a second guilty 
verdict on the same insufficient evidence? By reason of the 
insufficiency the judgment of conviction was reversed. 
Clearly, the defendant should have been acquitted in the 
trial court, and that acquittal would have barred a second 
trial for the same offense. Logic would dictate a similar 
result when the acquittal comes at the appellate level, for it 
is a miscarriage of justice that the defendant was not 
acquitted at trial.

* * *

There is no substantial difference between a defendant 
who requests a directed verdict and one who raises the issue 
for the first time in the motion to correct errors. Both are 
calling the attention of the trial court to the legal 
insufficiency of the evidence and are requesting appropriate 
relief. In either case the trial court is empowered to acquit 
the accused. A review of the policies underlying the double 
jeopardy provisions reveals no basis upon which such 
differential treatment could be grounded. Fundamentally, 
the State is given one opportunity, and one only, to convict 
a citizen of a crime. The purpose of the double jeopardy 
clause is to protect the individual from the hazards of 
repeated trials and possible conviction for the same offense.

11

11



12

* * *

[A] defendant who was improperly acquitted in the 
trial court is free from further prosecution. Yet a defendant 
who was entitled to acquittal in the trial court but was 
compelled to appeal from an improper conviction may be 
subjected to retrial. No justification for such disparate 
treatment exists. This injustice is especially pervasive when 
an appellant, who was wrongfully convicted, remains 
incarcerated pending his appeal because of his inability to 
make bail. Even though the costs of his legal defense may 
be borne by the county, an impecunious defendant pays for 
his retrial through loss of liberty.

Moreover, the effect of the present state of the law could 
be to afford broader constitutional protection to a defendant 
who is shown to be prima facie guilty. Even if palpably 
erroneous, a directed verdict of acquittal at the trial level 
could protect a guilty defendant from the hazards of retrial 
after a reversal of the conviction upon appeal. On the other 
hand, a defendant who is not shown to be prima facie guilty, 
and who in fact may be innocent, could be subjected to a 
new trial. Thus, the present state of the law in the context of 
individual cases is calculated to shield the guilty and 
persecute the innocent.

* * *

Different considerations are apparent with respect to 
reversals for reasons other than insufficient evidence. For 
example, when a reversal is based upon improper jury 
instructions or some pretrial procedural irregularity, a 
defendant may have been denied a fair trial even though the 
evidence of guilt was overwhelming. It is far better that a 
defendant be given a fair trial upon remand than to extend 
the harmless error doctrine as a basis for affirmance. In 
such a case, the accused was not entitled to acquittal in the 
trial court, nor should such relief be afforded in the 
appellate court. The security of the community at large may 
be preserved by a new trial while also securing the 
defendant’s right to a fair trial. The defendant who is not 
shown to be prima facie guilty, however, in theory, 
represents no threat to the community. Whether the 
defendant in such a case is acquitted at trial or upon appeal 
should make no difference. In either case the accused 
should not be retried.12



13

Moreover, the security of the community, preserved by 
the imposition of criminal sanctions, has never been the sole 
consideration of our criminal justice system. Even though 
defendants may be guilty, countervailing policies immunize 
from prosecution those who have been denied their rights to 
speedy trials or who have not been brought to justice within 
the statutory period. If public policy requires retrial of 
defendants acquitted upon appeal, it can also be argued that 
the same policy requires retrial of defendants acquitted in 
the trial court. In either case, the State may be able to 
develop additional evidence sufficient to support a convic­
tion. The double jeopardy bar, however, was explicitly 
designed to prohibit this kind of continuing persecution of 
the accused.

B. The Petitioner Did Not Waive His Right to an 
Acquittal by Taking an Appeal.

Early decisions of this Court posited that the accused 
“waived” his double jeopardy rights by taking an appeal. 
Murphy v. Massachusetts, 111 U.S. 155, 158 (“[A] convicted 
person cannot by his own art avoid the jeopardy in which he 
stands, and then assert it as a bar to subsequent jeopardy.”) 

United States v. Ball, 163 U.S. 662, 672 said:
[I]t is quite clear that a defendant who procures a 

judgment against him upon an indictment to be set aside, 
may be tried anew upon the same indictment, or upon 
another indictment, for the same offense of which he had 
been convicted.
The Ball doctrine for years was unanimously accepted by the 

courts. The dominant theory was that the defendant, by 
successfully appealing his erroneous conviction, “ waived” the 
protection against being retried for the same offense which the 
former judgment afforded him.

As said in Mayer and Yarbrough, n.6, supra, at 6:
Yet it is obvious that a waiver rationale here, as 

elsewhere, serves only to state the conclusion without 
explaining the reason for it. The defendant, if given his

13



14

choice, would prefer both to have and eat his cake; but the 
term ‘waiver’ connotes a voluntary act. Furthermore, the 
waiver theory must start with the assumption that the 
Constitution itself protects the defendant from a new trial 
after appeal, absent his consent. If this premise were 
correct, then Justice Holmes’ criticism of the waiver 
rationale would seem indisputable: ‘[I]t cannot be imagined 
that the law would deny to a prisoner the correction of a 
fatal error unless he should waive other rights so important 
as to be saved by an express clause in the Constitution. . .’ 
[Kepner v. United States, 195 U.S. 100, 135 (dissenting 
opinion)].
The “waiver” theory was dismissed by this Court in the 

double jeopardy decision of Green v. United States, 355 U.S. 
184, 192 where the waiver argument was said to be “wholly 
fictional.” The Court found a defendant convicted of a serious 
crime “has no meaningful choice” but to appeal his conviction. 
Such an appeal could not be termed a voluntary knowing 
relinquishment of a right. Cf. Johnson v. Zerbst, 304 U.S. 458.

C. The Petitioner Did Not Waive His Right to an 
Acquittal by Asking for a New Trial.

The petitioner seeks a new trial only as an alternative to a 
judgment of acquittal. Here, counsel at the conclusion of all the 
proof moved for a judgment of acquittal (A. 145). The petitioner 
is not asking to be tried over again. He is merely asking for his 
legal rights. Rule 29(a), F. R. Crim. P., provides the trial court 
“ shall” acquit him “after the evidence on either side is closed if 
the evidence is insufficient to sustain a conviction of such offense 
or offenses.”

Mr. Justice Douglas in a concurring opinion in Sapir v. United 
States, supra, 348 U.S. 373, 374, wrote:

If the petitioner had asked for a new trial, different 
considerations would come into play for then the defendant 
opens the whole record for such disposition as might be just.

14



15

Sapir was decided two years before Green, supra which held 
“wholly fictional” the old waiver rule. As said by the court in 
People v. Brown, 99 111. App.2d 281, 241 N.E.2d 653, 662 
(1968):

We can think of no reason in fairness and justice why a 
defendant on appeal should be required to discard his right 
to seek a new trial based on trial errors, in order to validate 
his right to seek an outright reversal for lack of evidence. In 
any sensible consideration of his position the former is seen 
to be a second-choice alternative to the latter. If his double 
jeopardy rights are deemed to have been waived by his 
request for a new trial, the waiver should then take effect 
only if the reversal is granted for the reasons contained in 
the new-trial request, and, if the conviction is reversed for 
lack of evidence, the waiver contained in an accompanying 
request for a new trial would never become operative.
Application of the waiver doctrine results in an anomoly. A 

trial court must (“shall”) enter a judgment of acquittal as a 
matter of right to the defendant, whereas the appellate court has 
discretion to order a new trial. The unfairness is increased if we 
accept the proposition that appellate courts sitting in panels and 
with more time for reflection err less frequently than would a trial 
judge, especially since the trial judge would ordinarily make his 
decision without the written transcript.

A defendant convicted on insufficient evidence is in a 
similar plight. He could, of course, serve his sentence and 
be free of a subsequent prosecution, but this is hardly an 
acceptable alternative. If he appeals on the ground that he 
should have been acquitted at trial, and the appellate court 
is in accord, why should he be any more subject to retrial 
than his counterpart who was acquitted at trial? By 
imposing a coerced waiver of the double jeopardy defense, 
courts penalize the accused for successfully attacking an 
erroneous judgment. The extension of the Green rationale 
to reversals for insufficient evidence would invalidate 
Bryan as a basis for remand and retrial. Thompson, n.6, 
supra, at 516-517.
The petitioner should not be denied a judgment of acquittal to 

which he is entitled on a theory this Court characterized as
15



16

“wholly fictional” in Green, supra. There is no reason why the 
defendant would “waive” an acquittal by asking for a new trial as 
alternative relief. Judicial notice could be taken that any 
defendant would rather have an acquittal than a new trial.

II.

ASSUMING THERE IS NO VIOLATION OF 
THE DOUBLE JEOPARDY CLAUSE, THE 
PETITIONER SHOULD BE ACQUITTED UN 
DER 28 U.S.C. 2106 BECAUSE JUST AND 
APPROPRIATE.

A literal absolutist interpretation of the Double Jeopardy 
Clause would not distinguish between reversals for trial errors or 
reversals for insufficient evidence. Policy considerations have 
determined over the years the scope of the clause. Justice Harlan 
in United States v. Tateo, 377 U.S. 463, 466 argued that 
appellate courts would be very reluctant to reverse a conviction if 
retrial were not available:

While different theories have been advanced to support 
the permissibility of retrial, of greater importance than the 
conceptual abstractions employed to explain the Ball 
principle are the implications of that principle for the sound 
administration of justice. Corresponding to the right of an 
accused to be given a fair trial is the societal interest in 
punishing one whose guilt is clear after he has obtained such 
a trial. It would be a high price indeed for society to pay 
were every accused granted immunity from punishment 
because of any defect sufficient to constitute reversible error 
in the proceedings leading to conviction. From the 
standpoint of a defendant, it is at least doubtful that 
appellate courts would be as zealous as they now are in 
protecting against the effects of improprieties at the trial or 
pretrial stage if they knew that reversal of a conviction 
would put the accused irrevocably beyond the reach of 
further prosecution. In reality, therefore, the practice of 
retrial serves defendant’s rights as well as society’s interest.

16



17

As a matter of fundamental fairness, apart from Fifth 
Amendment reasons, society has no interest in retrying a 
defendant against whom the evidence was insufficient at the first 
trial. The fairness rationale of Tateo, supra, would forbid a 
second trial in insufficiency cases in general for two reasons.

First, the prosecution must be on its toes to put forth all the 
evidence the first time. In both Brown and Wiley, supra, the 
prosecutors asked for retrials, pointing out that additional 
witnesses could be called the second time around. These 
arguments were rejected as fundamentally unfair. This point was 
illustrated by the court in Brown, n.6, supra, 241 N.E.2d 653, 
660 n.3:

In his petition for rehearing, the State’s Attorney seeks to 
support his argument by noting that, in answer to a Bill of 
Particulars, the State listed 18 possible witnesses, whereas 
at the trial only 7 took the stand. We do not consider that an 
adequate representation has been made as to the additional 
evidence which would, with certainty, be presented at a new 
trial, even if this were clearly the only criterion for 
remandment. This case thus presents a good example of 
what we have in mind: at a second trial the State might use 
10 or 12 witnesses and, if reversed again, maybe 15 would 
be presented at a third trial, and so on. Only one witness is 
claimed to have been unavailable (absent from the city) at 
the time of trial. The record does not disclose, however, that 
the State made any attempt to obtain a continuance on that 
account, pursuant to the Code of Criminal Procedure, 111. 
Rev. Stat. (1965), ch. 38, § 114-4(c)(2).

Having remanded for a new trial, it would appear to be 
impractical for a reviewing court to attempt control of such 
trial to insure that evidence more satisfactory to the 
prosecution would be introduced. The new trial could not 
very well be granted on that condition (even if we were to 
consider this a desirable procedure, which we do not), and, 
if it were, the standard would be impossible of practical 
application. Suppose, further, that the State were to 
introduce only the same evidence at the new trial and 
manage again to obtain a conviction. What then? Nor would 
an acquittal in this circumstance serve as a solution to the 
problem, because the constitutional guaranty is not against

17



a second conviction, but against being placed in repeated
jeopardy through trial. See also, Cahan, n.6, supra, at 461.
Second, defendants may be treated unfairly by the same court. 

Compare the reversal by the Sixth Circuit in United States v. 
Rosenbarger, supra, with the Sixth Circuit’s treatment of the 
defendant in this case.

In an earlier case where the Sixth Circuit reversed for lack of 
evidence of sanity of the defendant, the remand was to the district 
court for a hearing with instructions to grant a new trial or 
dismiss “ unless the Government was unfairly prevented from 
producing competent evidence.” United States v. Smith, 437 
F.2d 538, 542. The remand in the instant case from the Sixth 
Circuit adopts a different standard in use in another circuit. See 
United States v. Bass, 490 F.2d 846, 852-853 (C.A. 5) (District 
judge may refuse to permit a retrial “ if he finds from the record 
that the prosecution had the opportunity to develop its case . . .  at 
the first trial.")

An egregious disparity of treatment was given as an illustration 
in Cahan, n.6, supra, at 449. Two defendants were convicted 
separately and independently of the crime of rape. Both cases 
were reversed by reviewing courts because the evidence was 
neither clear and convincing nor corroborated as required by law. 
One case was remanded for retrial and the other was reversed 
outright.

There is no evidence here that admissible evidence which 
would have made the Government’s case was wrongfully 
withheld. No failure of the petitioner contributed to this failure of 
the Government to make a case. Using its power under §2106, 
the Court should order the entry of a judgment of acquittal if it 
finds no Fifth Amendment violation. The standards for the 
district judges on remand should be made uniform in each circuit.

18

18



19

CONCLUSION

For the foregoing reasons, it is respectfully submitted that a 
judgment of acquittal should be ordered to be entered. If 
remanded, the standard should be a new trial only if the 
Government was unfairly prevented from producing evidence at 
the previous trial.

BART C. DURHAM. Ill 
1104 Parkway Towers 
Nashville, Tennessee 37219

Attorney for Petitioner

19



No. 76-6528

lit  i t  j&tjrrtmt a j« i »f Ife litW  States
O c to b er  T e r m , 1977

D a v id  W a y n e  B u r k s , p e t it io n e r

v.
U n it e d  S t a t e s  o f  A m e r ic a

ON W R IT  OF C E R T IO R A R I TO T H E  U N IT E D  S T A T E S  CO U RT OF  
A P P E A L S  F O R  T H E  S I X T H  C IR C U IT

BRIEF FOR THE UNITED STATES

D A N IE L  M. F R IE D M A N ,
A cting  So licitor General, 

B E N JA M IN  R. CIV IL ETT I, 
A ssis ta n t A tto rn ey  General, 

F R A N K  H . EASTERBROOK, 
A ssis ta n t to the  Solicitor General, 

M ICH AEL W . FARRELL,
H E N R Y  W A LK E R ,

A ttorneys,
D epartm en t o f  Justice, 

W ashington, D.C. 20530.

21



I N D E X

Pftffe
Opinions below____________________________________  1
Jurisdiction-----------------------------------------------------------  1
Question presented_________________________________  2
Constitutional provision and statute involved___________ 2
Statement ________________________________________  3
Summary of argument---------------------------------------------  7
Argument:

The Double Jeopardy Clause does not invariably pro­
hibit the holding of a second trial if the court of ap­
peals concludes that the interests of justice require 
such a trial after a reversal for insufficient 
evidence ____________________________________ * 12

A. A second trial ordinarily may be held after a
conviction is reversed on appeal__________ 12

B. This Court has allowed second trials after
reversals for insufficiency of the evidence__  17

C. There is no bright line between insufficiency of
the evidence and legal error at trial_______  21

1. Legal and factual issues may be in­
extricably intertwined_____________ 21

2. Even genuine deficiencies in the evi­
dence may be attributable to the 
defendant or to legal error_________  24

3. An inflexible rule barring retrials would
deter appellate courts from giving 
defendants the benefit of the doubt in 
close cases_______________________  29

4. Evidence relating to affirmative defenses
presents problems unlike those that 
arise when the proof does not estab­
lish one of the elements of the 
offense _________________________  32

(i)

23



II

Arguments—Continued page
D. Appellate courts should be permitted to re­

quire or allow second trials when that course
is just and reasonable___________________  37

Conclusion________________________________________  40

C IT A T IO N S

Cases:
Abney v. United States, No. 75-6521, decided June 9,

1977 ________________________________________  13
Amador Beltran v. United States, 302 F. 2d 48_______  35
Boylan v. United States, 257 U.S. 614_____________ 2
Barnes v. United States, 412 U.S. 837_____________  22
Brady v. Maryland, 373 U.S. 83----------------------------  36
Breed v. Jones, 421 U.S. 519_____________________ 13,14
Brock v. North Carolina, 344 U.S. 424______________ 16
Brown v. Ohio, No. 75-6933, decided June 16,1977----- 13
Bryan v. United States, 388 U.S. 552-------------------  7,17, 39
Clyatt v. United States, 197 U.S. 207----------------------  17
Cook v. United States, 362 F.2d 548-----------------------  30
Commissioner v. Estate of Bedford, 325 U.S. 283------  2
Dann v. Chat-field, certiorari denied, October 3, 1977

(No. 76-1559)________________________________ 2
Davis v. United States, 160 U.S. 469----------------------  33
Department of Banking v. Pink, 317 U.S. 264----------- 2
Dotson v. United States, 440 F. 2d 1224_____________ 38
Douglas v. United States, 239 F. 2d 52-------------------  35
Forman v. United States, 361 U.S. 416---------------13,19, 20
Glasser v. United States, 315 U.S. 60----------------------  21
£roW v. United States, 367 U.S. 364-------------------------  16
Green v. United States, 355 U.S. 184---------------------- 13,14
Greene v. Massey, 546 F. 2d 51, certiorari granted,

June 20, 1977 (No. 76-6617)_____________________  19
Hopkins v. United States, 275 F. 2d 155----------------  35
Jeffers v. United States, No. 75-1805, decided June 16,

1977 _________________________________________  13
Julian v. United States, 391 F. 2d 279______________  35
Leary v. United States, 395 U.S. 6-------------------------  22
Lelanel v. Oregon, 343 U.S. 790-----------------------------  34
Ludwig v. Massachusetts, 427 U.S. 618-------------------  13
McGautha v. California, 402 U.S. 183------------------------- 36

24



Ill

Cases—Continued „P age
Murphy v .  Massachusetts, 177 U.S. 155_____________ 13
North Carolina v. Pearce, 395 U.S. 711__________12,13,19
Patterson v. New York, No. 75-1861, decided June 17,

1977 _______________________________________  33
Pfister v. Northern Illinois Finance Corp., 317 U.S.

144 ________________________________________  2
Price v. Georgia,, 398 U.S. 323____________________  13
Rucker v. United States, 288 F. 2d 146______________  35
Sapir v. United States, 348 U.S. 373________________  13
Scarborough y. United States, No. 75-1344, decided

June 6,1977__________________________________  22
Schacht v. United States, 398 U.S. 58_______________  1
Sosa v. State, 215 So. 2d 736______________________ 31
Speiser v. Randall, 357 U.S. 513___________________  33
Stroud v. United States, 251 U.S. 15_______________  13
Sumpter v. DeGroote, 552 F. 2d 1206_______________ 20, 23
Trono v. United States, 199 U.S. 521-----------------------  13
United States v. Alvarez, 519 F. 2d 1036-------------------  36
United States v. Ball, 163 U.S. 662-----------------------  7,12,26
United States v. Barfield, 405 F. 2d 1209----------------  35
United States v. Barker, 558 F. 2d 899----------------------  19
United States v. Bass, 404 U.S. 336------------------------- 22
United States v. Bass, 490 F. 2d 846-----------------------  6,35
United States v. Bertolotti, 529 F. 2d 149----------------  23
United States v. Ciofji, 487 F. 2d 492, certiorari denied

sub nom. Ciuzio v. United States, 416 U.S. 995-------- 26
United States v. Dinitz, 424 U.S. 600----------------------  13
United States v. Dube, 520 F. 2d 250--------------------  28
United States v. Dunn, 299 F. 2d 548--------------------  35
United States v. Ewell, 383 U.S. 116----------------------- 13
United States v. Fay, 533 F. 2d 1247--------------------  26
United States v. Koward, 432 F. 2d 1188-------- 11,20, 27,37
United States v. Jorn, 400 U.S. 470-------------  7,15,16,19, 32
United States v. Koonce, 485 F. 2d 374------------------ 38
United States v. Lefkowitz, 284 F. 2d 310---------------  30
United States v. Martin Linen Supply Co., No. 76-120,

decided April 4,1977----------------------------------------  26
United States v. McGraw, 515 F. 2d 758-------------------  35
United States v. Parks, 460 F. 2d 736---------------------  35
United States v. Robinson, 545 F. 2d 301---------------  19

25



Cases—Continued Page
United States v. Smith, 437 F. 2d 538____________ 27,35,38
United States v. Snider, 502 F. 2d 045______________  38
United States v. Steinberg, 525 F. 2d 1126__________ . 11, 20
United States v. Tateo, 377 U.S. 463________9,13,14,29,32
United States v. Wiley, 517 F. 2d 1212________ 11, 20, 27, 37
United States v. Wilson, 399 F. 2d 459______________ 35
United States v. Wilson, 420 U.S. 332______________ 12,14
United States v. Wright, 511 F. 2d 1311_____________ 36
Wade v. Hunter, 336 U.S. 684_____________________  15
TFatf&ms v. United States, 409 F. 2d 1382, certiorari

denied, 396 U.S. 921___________________________  35
Whalem v. United States, 346 F. 2d 812_____________ 36
Wiborg v. United States, 163 U.S. 632_____________  17
IF inship. In  re, 397 U.S. 358______________________  33
Tates v. United States, 354 U.S. 298_______________  18

Constitution and statutes:
United States Constitution:

Fourth Amendment_________________________  26
Fifth  Amendment__________________ _________  2
Double Jeopardy Clause_____________2,7,12,18,25,22

18 U.S.C. 2113____    23
18 U.S.C. 2113(d)_______________________________ 3
18 U.S.C. 2113(e)_______________________________ 3
28 U.S.C. 2106_______________________  2,10,17,20,25,37

Miscellaneous:
1 Annals of Congress (1789)_____________________ 12
Comment, Double Jeopardy: A New Trial After Ap­

pellate Reversal for Insufficient Evidence, 31 U. Chi.
L. Rev. 365 (1964)____________________________  20

Federal Rules of Criminal Procedure:
Rule 29(a)________________________________  6
Rule 2 9 (c )________________________________  5
Rule 33___________________________________  31

Federal Rules of Evidence, Rule 704_____________  28
McCormick, Handbook of the Law of Evidence § 12

(Cleary ed. 1972)_____________________________ 28
Thompson, Reversals for Insufficient Evidence :

The Emerging Doctrine of Appellate Acquittal,
8 Ind. L. Rev. 497 (1975)___________________  20

2 Wright, Federal Practice and Procedure: Criminal 
§470 (1969)_________________________________ 19



$ «  jftc djtmtf of to  W tiiM staffs
O c to b er  T e r m , 1977

No. 76-6528

D avid  W a y n e  B u r k s , p e t it io n e r

v.
U n it e d  S t a t e s  o f  A m e r ic a

ON W R IT  OF C E R T IO R A R I TO T H E  U N IT E D  S T A T E S  C O U RT OF 
A P P E A L S  F O R  T H E  S I X T H  C IR C U IT

BRIEF FOR THE UNITED STATES

OPINIO NS BELOW

The opinion of the court of appeals (A. 155-158) 
is reported at 547 F.2d 968. The opinion of the dis­
trict court (A. 18-20) is not reported.

JU R ISD IC T IO N

The judgment of the court of appeals was entered 
on December 30, 1976. Petitions for rehearing filed by 
both petitioner and the United States were denied on 
February 8,1977 (A. 159-160). The petition for a writ 
of certiorari was filed on April 11, 1977,1 and was

1 The petition was 32 days out of time under Rule 22(2) of the 
Rules of this Court. Petitioner has offered the explanation that a

( 1)



granted on June 13, 1977 (A. 161). The jurisdiction 
of this Court rests on 28 U.S.C. 1254(1).

QUESTION PR E SE N T E D

Whether the Double Jeopardy Clause invariably 
bars a retrial after a court of appeals concludes that 
the evidence, although sufficient to show commission 
of the crime, does not adequately establish the de­
fendant’s sanity.

CONSTITUTIONAL P R O V ISIO N  A N D  STA T U TE IN V O LV ED

The Fifth Amendment to the United States Con­
stitution provides in relevant part:

* * * [1ST]or shall any person be subject for the 
same offence to be twice put in jeopardy of 
life or limb * * *.

28 U.S.C. 2106 provides:
The Supreme Court or any other court of 

appellate jurisdiction may affirm, modify, va­
cate, set aside or reverse any judgment, decree,

stay of mandate granted by the court of appeals extended the 
time within which to file a petition. This is incorrect; the time 
within which to file a petition runs from the entry of judgment or, 
in this case, from the denial of a petition for rehearing. The criti­
cal date is the date on which the judgment becomes final, not the 
date upon which it becomes effective. Department of Banking v. 
Pink, 317 U.S. 264, 266; Boylan v. United States, 257 U.S. 614; 
Pfister v. Northern Illinois Finance Corp., 317 U.S. 144, 149-150. 
The date on which mandate issues therefore is irrelevant unless 
the appellate court treats its mandate as its judgment. Commis­
sioner v. Estate of Bedford, 325 U.S. 283; Dawn v. Ch-atfield, cer­
tiorari denied, October 3, 1977 (No. 76-1559). The Sixth Circuit 
does not treat its mandate as its judgment, and the petition is 
therefore untimely. Cf. Schacht v. United States, 328 U.S. 58, 64 
(the time requirements of Rule 22(2) are not jurisdictional and 
may be relaxed “when the ends of justice so require”).

I
2

28



3

or order of a court lawfully brought before it 
for review, and may remand the cause and 
direct the entry of such appropriate judgment, 
decree, or order, or require such further pro­
ceedings to be had as may be just under the 
circumstances.

STATEM ENT

An indictment returned in the United States Dis­
trict Court for the Middle District of Tennessee 
charged petitioner with robbing a federally insured 
bank by use of a dangerous weapon, in violation of 
18 U.S.C. 2113(d), and with kidnapping to avoid ap­
prehension for the robbery, in violation of 18 U.S.C. 
2113(e) (A. 4-5). Before trial the kidnapping count 
was dismissed on the government’s motion (Tr. 14).

At trial petitioner challenged the sufficiency of the 
proof of the robbery; his major defense, however, 
was that he was insane at the time of the robbery. He 
called three expert witnesses who testified, albeit with 
differing diagnoses of petitioner’s condition, that he 
“suffered from a mental illness at the time of the 
bank robbery and that he was substantially incapable 
of conforming his conduct to the requirements of the 
law against robbing banks” (A. 155).

The prosecution called two expert witnesses. The 
first, Dr. R. James Farrer, agreed with two of peti­
tioner’s experts that petitioner possessed a “character 
disorder” and had robbed the bank as a means “to 
solve inner problems” by getting caught, but he re­
fused to classify petitioner as “mentally ill” (A. 113- 
116, 122). The second expert, Dr. Denton Buchanan,

29



4

also acknowledged that petitioner had a character dis­
order manifested by an occasional “ defiant act,” in 
this case robbing the bank “to get caught, [as] a way 
of being defiant towards his parents” (A. 128-129, 
135, 138). Asked whether in his judgment petitioner 
had been able on the day of the robbery to “conform 
his conduct to the rules of society,” Dr. Buchanan 
stated that petitioner’s conduct in preparation for the 
robbery showed that he was “capable of obeying at 
least some laws but [that] clearly by [his] behavior 
he did not obey another law” (A. 142-143). Dr. Bu­
chanan explained that petitioner is aggressive but that 
“ [t]here is no indication of a psychotic process at 
present or the remnants of a previous psychotic reac­
tion, [Petitioner’s] intellectual functioning is in the 
superior range” (A. 126).

Finally, the prosecution produced testimony of eye­
witnesses to the robbery, of a taxi driver who had en­
countered petitioner immediately before the robbery, 
and of the arresting officers; these witnesses agreed 
that petitioner appeared to be fully in control of him­
self at the time of the robbery (A. 23-24, 29; Supp. 
Tr. 27-29). Petitioner’s employment supervisor also 
testified that, during the weeks, preceding the robbery, 
petitioner had been able to perform the tasks de­
manded by his job (A. 157).

Before the case was submitted to the jury, the dis­
trict court invited petitioner to move for a judgment 
of acquittal; petitioner did so, and the court promptly 
denied the motion (A. 145). The case was submitted 
to the jury, which returned a verdict of guilty (A. 
154).

30



5

Petitioner then filed a motion for a new trial, con­
tending, among other things, that “ [t]he evidence was 
insufficient to support the verdict” (A. 15). Petitioner 
did not file a motion for a judgment of acquittal, al­
though Fed. R. Crim. P. 29(c) provides that such mo­
tions may be filed within seven days of the verdict.

The district court denied the motion for a new trial 
(A. 18-20). I t concluded that the contention “that the 
evidence was insufficient to support the verdict * * * 
is utterly without merit” (A. 18). The court sentenced 
petitioner to 20 years’ imprisonment, with immediate 
eligibility for parole (A. 13-14).

On appeal, petitioner conceded that he robbed the 
bank as charged (A. 158). The only questions on ap­
peal therefore concerned the insanity defense. The 
court of appeals concluded that the government’s evi­
dence had not “effectively” (A. 157) overcome the 
p rim a  facie showing by petitioner’s experts that peti­
tioner was insane at the time of the robbery. The court 
believed that the prosecution’s witnesses, despite hav­
ing given “detailed accounts of their contacts with 
[petitioner] and opinions concerning his emotional 
problems, [had] * * * not express [ed] definite opin­
ions on the precise questions which this court has 
identified as critical in cases involving the issue of 
sanity” (A. 157). Because the witnesses had not ex­
pressed their opinions on the ultimate questions, the 
court held, the evidence of sanity was insufficient.

The court observed that petitioner had moved for 
a new" trial because of the insufficiency of the evi­
dence, and it remanded the case for a hearing at 
which the district court is to determine whether the

31



6

prosecutor lias additional evidence to present on the 
issue of petitioner’s sanity (A. 157-158). I t  instructed 
the district court to “balane[e] * * * the equities” at 
the hearing and either to enter a judgment of acquit­
tal or to set the case for retrial (A. 158).2 The court 
of appeals adopted the standards and procedures out­
lined in U nited  S ta tes  v. Bass, 490 F. 2d 846, 852- 
853 (C.A. 5) (see A. 158) :

[W]e reverse and remand the case to the dis­
trict court where the defendant will be entitled 
to a [judgment] of acquittal unless the govern­
ment presents sufficient additional evidence to 
carry its burden on the issue of defendant’s 
sanity. * * * If  the district court, sitting with­
out the presence of the jury, is satisfied by 
the government’s presentation, it may order a 
new trial. * * * Even if the government pre­
sents additional evidence, the district court 
may refuse to order a new trial if he finds 
from the record that the prosecution had the 
opportunity fully to develop its case or in fact 
did so at the first trial.

Under this standard petitioner will be exposed to 
a second trial if (a) the prosecution offers additional 
evidence sufficient to establish petitioner’s sanity, and 
(b) the prosecution establishes that it did not have 
the opportunity fully to develop its ease at the first 
trial.

2 The court of appeals referred to a “directed verdict * * * of 
acquittal,” but directed verdicts have been abolished. Fed. R. 
Crim. P. 29(a).

32



7

SU M M A R Y  OF A RG UM ENT

A. I t  has long been settled that a defendant may be 
retried after his conviction has been reversed at his 
request. U nited  S ta tes  v. B all, 163 TT.S. 662. Although 
a number of rationales have been advanced for this 
unquestioned rule, the most satisfactory is that second 
trials often represent the best resolution of whatever 
conflict there may be between the defendant’s interest 
in avoiding multiple trials and the public interest in 
obtaining convictions of those guilty of crime, The de­
cision to allow reprosecution “reflects the judgment 
that the defendant’s double jeopardy interests, how­
ever defined, do not go so far as to compel society to 
so mobilize its decisionmaking resources that it will be 
prepared to assure the defendant a single [trial] free 
from harmful governmental or judicial error.” U nited  
S ta tes  v. Jorn , 400 U.S. 470, 484 (plurality opinion).

B. The conclusion that a second trial represents the 
fairest resolution of the competing interests is least 
strong when the evidence is insufficient at the first trial 
to support a conviction. The Double Jeopardy Clause 
was designed, in part, to prevent the prosecution from 
having repeated opportunities to muster enough evi­
dence to convict the defendant. But the Court held in 
B rya n  v. U nited S ta tes, 338 U.S. 552, that the Double 
Jeopardy Clause does not prohibit a second trial after 
a conviction has been reversed for insufficient 
evidence.

B rya n  has been criticized, and to. the extent it holds 
that a defendant uniformly may be tried a second time

33



8

after reversal on appeal, it has been undermined by 
subsequent cases. But the rationale for permitting re­
trials applies in many cases that might be character­
ized as reversals for insufficiency of the evidence. Al­
though no rule uniformly permitting retrials is appro­
priate, neither is a rule uniformly forbidding retrials 
consistent with the ends of public justice.

C. There is no bright line between insufficiency of 
the evidence and legal error that would justify a rule 
uniformly forbidding retrials in the former situation 
and uniformly permitting it in the latter. In a real 
sense, decisions about the sufficiency of evidence fre­
quently turn on questions of law. The decision of the 
prosecutor to present particular evidence and ask par­
ticular questions is influenced by his (and the trial 
court’s) understanding of the legal rules governing 
proof of the offense, so that an appellate finding of evi­
dentiary insufficiency may be intimately intertwined 
with legal mistakes by the trial participants.

For example, the prosecutor may rely for part of his 
proof on presumptions and inferences, the propriety 
of which creates legal questions. The prosecutor and 
trial court may misunderstand the elements of the 
offense that need to be proved. “Variance” between 
pleading and proof can be viewed as either a de­
ficiency in the evidence or as an error in drafting the 
indictment. The evidence might establish an offense 
other than that charged in the indictment; that, too, 
may be only a drafting error. The court may submit 
the case to the jury on a theory unsupported by the

34



9

evidence, although the proof at trial made out the 
offense charged under the proper theory. A court may 
improperly exclude relevant evidence, as a result of 
which the remaining evidence is insufficient. Or a 
court may erroneously admit evidence and the pros­
ecutor, in reliance on that decision, may elect not to 
offer other (admissible) evidence that would have 
established the offense.

In the present case the court of appeals apparently 
concluded that the government’s expert witnesses 
should have addressed themselves directly to the ulti­
mate issue whether petitioner had substantial capacity 
to conform his conduct to the requirements of the law. 
But whether such opinion testimony is required—or 
whether, instead, jurors may infer such conclusions 
from the other testimony of the expert witnesses—is as 
much a legal as a factual question. The defect identi­
fied by the court of appeals therefore may have been 
caused by a mistake of law shared by the prosecutor 
and the district court rather than by any inability to 
prove that petitioner had committed the offense.

Even when no legal problem is mingled with the 
factual insufficiency, significant considerations sup­
port recognition of judicial discretion to order a 
second trial. This Court explained in U nited S ta tes  v. 
Tateo, 377 U.S. 463, 466, that “it is at least doubtful 
that appellate courts would be as zealous as they now 
are in protecting against * * * improprieties at trial 
* * * if they knew that reversal of a conviction would 
put the accused irrevocably beyond the reach of

35



10

further prosecution.” That consideration applies to 
cases in which the evidence is insufficient no less than 
to cases in which the trial may have been beset by 
procedural error. When the sufficiency of the evidence 
is doubtful, but the appellate court is not convinced 
that the defendant should be discharged entirely, a 
remand for a second trial may be the fairest solution 
for all concerned.

Affirmative defenses such as insanity present special 
problems in this regard. Sanity is not necessarily an 
element of the offense, and questions about mental 
condition may take the trial far afield from the usual 
questions of factual guilt. When the statutory ele­
ments of the offense have been established beyond 
question, as they have been here (petitioner has con­
ceded that he robbed the bank), and when the evidence 
addressed to the affirmative defense is strong enough 
to persuade a jury to convict and to persuade a dis­
trict court to deny a motion for a judgment of acquit­
tal, it is not unfair to permit a second trial if an 
appellate court should conclude that the evidence was 
defective in some respect not perceived at trial.

D. The statute governing further proceedings after 
a reversal on appeal provides that the appellate court 
may direct the holding of such further proceedings 
as are “just” and “appropriate.” 28 U.S.C. 2106. We 
believe that the statute and the Double Jeopardy 
Clause both establish a test under which the defend­
ant’s interests and those of the state must be con­
sidered and fairly reconciled. The defendant has an

36



11

important interest in avoiding being subjected to re­
peated trials at which the prosecutor attempts to sup­
ply the evidence necessary to support a conviction. 
But where the defect at the first trial is based upon a 
mistake of law rather than upon simple factual in­
sufficiency, or where the prosecutor cannot reasonably 
be faulted for any factual insufficiency, the interest in 
accurate resolution of criminal charges outweighs the 
interest of a defendant in avoiding a second trial after 
conviction at the first.

The ends of public justice should be the guiding 
criterion. Under the approach we have outlined—an 
approach that several courts of appeals have 
adopted3—there can be no second trial if the evidence 
at the first was insufficient and there is no good ex­
cuse for that insufficiency. A second trial would be 
appropriate only if (a) it appears that the prosecutor 
can supply at the second trial the evidence that was 
missing at the first, and (b) the prosecutor can dem­
onstrate that there was a good reason why the evi­
dence was not presented at the first trial. Under this 
approach second trials would be the exception, not the 
rule. But when these conditions are present, second 
trials serve the ends of public justice and are con­
sistent with the principles of the Double Jeopardy 
Clause.

3 Sec, e.g., United States v. Wiley, 517 F. 2d 1212 (C.A. D .C .); 
United States v. Howard, 432 F. 2d 1188, 1191 (C.A. 9) (opinion 
of Ely and Hufstedler, J J .) .  See also United States v. Steinberg, 
525 F. 2d 1126,1131-1135 (C.A. 2) (Friendly, J., concurring). See 
also note 26, infra.

37



12

The court of appeals remanded the present case to 
permit the district court to conduct an inquiry into 
the ability of the prosecutor to offer sufficient evi­
dence and into the reasons for the deficiency at the 
first trial, Petitioner will not be tried a second time 
unless that trial would be in the interest of justice 
under the principles of Tateo  and Jorn . There is no 
reason to forbid the district court from making this 
inquiry, and the judgment of the court of appeals 
therefore should be affirmed.

A R G U M E N T

TH E DOUBLE JEOPARDY CLAUSE DOES NOT INVARIABLY 
PROHIBIT THE HOLDING OF A SECOND TRIAL IF  THE 
COURT OF APPEALS CONCLUDES THAT THE INTERESTS 
OF JUSTICE REQUIRE SUCH A TRIAL AFTER A REVERSAL 
FOR INSUFFICENT EVIDENCE

A . A  SECOND T R IA L  O R D IN A R ILY  M A Y  BE H E L D  A FT E R  A C O N V IC T IO N  IS  

REVERSED O N  A PP E A L

“ At least since 1896, when U nited  S ta tes  v. Ball, 
163 U.S. 662, was decided, it has been settled that 
[the Double Jeopardy Clause] imposes no limitations 
* * * upon the power to re try  a defendant who has 
succeeded in getting his first conviction set aside.’’ 
N o rth  Carolina v. Pearce, 395 U.S. 711, 719-720; 
emphasis in original. This principle is as old as the 
Double Jeopardy Clause itself.4 I t is “ elementary in

* A  statement of the rule appears in the congressional debates 
on the amendment. See 1 Annals of Congress 753 (1789); United 
States v. Wilson, 420 U.S. 332,340-341.

38



13

our law” (.Form an  v. U nited S ta tes , 361 U.S. 416, 
425) and a “ well-established part of our constitu­
tional jurisprudence” (U nited S ta tes  v. Tateo, 377 
U.S. 463, 465). Perhaps no other principle of double 
jeopardy law has been stated so often.5 Its validity 
has never been seriously questioned.

Several rationales have been advanced for this rule. 
Some cases explained that a defendant who appeals 
from a conviction “waives” any double jeopardy ob­
jection to a second trial on the offense of which he 
was convicted. See, e.g., Trono  v. U nited S ta tes, 199 
U.S. 521, 533; S a p ir  v. U nited S ta tes, 348 U.S. 373, 
374 (Douglas, J., concurring). Other cases state that 
an appeal “continues” the jeopardy of the first trial. 
See, e.g., J e ffe rs  v. U nited S ta tes, No. 75-1805, de­
cided June 16, 1977, plurality slip op. 14; P rice  v. 
Georgia, 398 U.S. 323, 326. Still others conclude that 
the propriety of a second trial “rests ultimately upon 
the premise that the original conviction has, at the 
defendant’s behest, been wholly nullified and the slate 
wiped clean.” N o rth  Carolina v. Pearce, supra, 395 
U.S. at 721.

5 See, e.g., Brown v. Ohio, No. 75-6933, decided June 16, 1977, 
slip op. 4 n. 5; Jeffers v. United States, No. 75-1805, decided 
June 16, 1977, plurality slip op. 14; Abney v. United States, No. 
75-6521, decided June 9, 1977, slip op. 14; Ludwig v. Massachu­
setts, 427 U.S. 618, 630-632; United States v. Dinits, 424 U.S. 600, 
610 n. 13; Breed v. Jones, 421 U.S. 519, 534; Price v. Georgia, 398 
U.S. 323, 326, 329 n. 4; United States v. Ewell, 383 U.S. 116, 121- 
125 j Green v. United States, 355 U.S. 184, 189; Stroud v. 
United States, 251 U.S. 15, 16-18; Murphy v. Massachusetts 177 
U.S. 155, 158-159.

39



14

All of these explanations are open to criticism,6 and 
although we do not entirely discount them, a “more 
satisfactory explanation” must be sought elsewhere. 
Breed  v. Jones, 421 U.S. 519, 534; U nited S ta tes  v. 
W ilson , 420 U.S. 332, 344 n. 11. The best explanation 
“lies in [an] analysis of the respective interests in­
volved” (B reed  v. Jones, supra, 421 U.S. 534); the 
practical justification for generally allowing a second 
trial after the first conviction has been reversed is 
simply that it is fairer to everyone involved. As the 
Court explained in U nited S ta tes  v. Tateo, supra, 377 
U.S. at 466:

[0 ]f greater importance than the conceptual 
abstractions employed to explain the B all prin­
ciple are the implications of that principle for 
the sound administration of justice. Correspond­
ing to the right of an accused to be given a 
fair trial is the societal interest in punishing 
one whose guilt is clear after he has obtained 
such a trial. It would be a high price indeed for 
society to pay were every accused granted im­
munity from punishment because of any defect 
sufficient to constitute reversible error in the 
proceedings leading to conviction. From the 
standpoint of a defendant, it is at least doubtful 
that appellate courts would be as zealous as they

6 The waiver analysis was largely rejected by Green v. United 
States, 355 U.S. 184, 191-198. Cf. United States v. Dinitz, supra 
(the propriety of a second trial after a defendant moves for a mis­
trial does not depend on “waiver”). The “continuing jeopardy” 
analysis has been rejected in other contexts. See United States v. 
Wilson, supra, 420 U.S. at 351-353. Finally, the “clean slate” 
analysis may be only a restatement of the waiver argument.

40



15

now are in protecting against the effects of im­
proprieties at the trial or pretrial stage if they 
knew that reversal of a conviction would put the 
accused irrevocably beyond the reach of further 
prosecution. In reality, therefore, the practice 
of retrial serves defendants’ rights as well as 
society’s interests.

The question of retrial after reversal usually arises 
when a defendant whose factual guilt has been estab­
lished by sufficient evidence asserts that, for some rea­
son, the factfinding process was unfair or unreliable or 
that a pretrial error undermined his conviction. In 
these cases it is entirely reasonable to remand the case 
to give the defendant what he was denied before—a 
proeedurally adequate trial. A second trial following 
a reversal of a conviction gives the accused what he 
asserted he was denied, and it does not offer the prose­
cutor a chance to obtain a more favorable verdict from 
a second factfinder after failing with the first. “The 
determination to allow reprosecution in these circum­
stances reflects the judgment that the defendant’s 
double jeopardy interests, however defined, do not go 
so far as to compel society to so mobilize its decision­
making resources that it will be prepared to assure the 
defendant a single proceeding free from harmful gov­
ernmental or judicial error.” U nited S ta tes  v. Jorn , 
400 U.S. 470, 484 (plurality opinion).7

7 A second trial after conviction and reversal does not jeopardize 
the defendant’s “valued right to have his trial completed by a par­
ticular tribunal” (Wade v. Hunter, 336 U.S. 684, 689) or deprive 
a defendant of his “option to go to the jury and, perhaps, end the

41



16

Petitioner contends, however, that the justifications 
for holding a second trial are inadequate when a 
defendant contends that the evidence was insufficient 
to support a conviction. When a motion for a judg­
ment of acquittal is erroneously denied, petitioner 
argues, the defendant is deprived of his chance to end 
the dispute then and there with an acquittal. More­
over, at a second trial the prosecutor will have “an­
other, more favorable opportunity to convict the ac­
cused” ( Gori v. U nited  S ta tes , 367 U.S. 364, 369) and 
will be able to try to “do better a second time” (B rock  
v. N o rth  Carolina, 344 U.S. 424, 429 (Frankfurter, J., 
concurring)). Petitioner contends that these were 
exactly the dangers against which the Double Jeop­
ardy Clause was designed to protect, and that when 
a court of appeals concludes that the evidence was 
insufficient to support a conviction, it has no choice 
but to enter a final judgment of acquittal.

These arguments for distinguishing evidentiary in­
sufficiency from legal errors are strong ones. For the 
reasons that follow, however, we do not believe that 
they justify the creation of a rigid rule invariably 
prohibiting second trials after reversals for insuf­
ficiency of the evidence.
dispute then and there with an acquittal” (United States v. Jom , 
supra, 400 U.S. at 484). This case went to the jury, which found 
petitioner guilty. The defendant in such cases has not been 
deprived of any options; there is no need to speculate about what 
the jury at the first trial would have done. The special problems 
that arise when a trial is terminated prior to verdict therefore do 
not pertain to the present case.

42



17

B. T H IS  COURT H A S  A LLOW ED SECOND TR IA LS A FT E R  REVERSALS FOR 

IN S U F F IC IE N C Y  OF T H E  EV ID EN CE

Before the creation of the courts of appeals, cer­
tain criminal convictions could be appealed directly 
to this Court. I t  was this Court’s practice, after con­
cluding that the evidence of guilt was insufficient, to 
remand the case for a second trial. See, e.g., W iborg  
v. U nited S ta tes, 163 U.S. 632; C lya tt v. U nited  
S ta tes, 197 U.S. 207.

This Court held in B rya n  v. U nited S ta tes, 338 U.S. 
552, that this practice comported with the Double 
Jeopardy Clause and was authorized by 28 U.S.C. 
2106, which gives appellate courts the power to direct 
on remand the holding of any further proceedings that 
may be “just” and “appropriate.” In B rya n  a convic­
tion had been reversed because the evidence was insuf­
ficient. This Court concluded that another trial should 
be held for several reasons: because the evidentiary 
question was very close, because the missing evidence 
could be supplied at a second trial, and because a “new 
trial was one of the remedies which petitioner sought” 
(338 U.S. at 560). I t then rejected the argument that 
such a trial would be constitutionally impermissible, 
pointing out that the defendant “sought and obtained 
the reversal of his conviction” {ib id .), a circumstance 
that always had been deemed to remove any double jeo­
pardy barrier to a second trial.

43



18

B ry a n  was a considered holding.8 It has been reaf­
firmed several times. In Y a tes  v. U nited  S ta tes, 354 
U.S. 298, 328, the Court, although concluding that it 
was just to acquit certain defendants against whom the 
evidence was insufficient, went on to point out that “we 
would no doubt he justified in refusing to order acquit­
tal even where the evidence might be deemed palpably 
insufficient, particularly since petitioners have asked 
* * * for a new trial as well as for acquittal.” In 
S a p ir  v. U nited  S ta tes, supra, the Court ordered a de­
fendant acquitted because of evidentiary insufficiency, 
but Mr. Justice Douglas noted in concurrence that the 
Double Jeopardy Clause would not invariably require 
such a disposition.9

In F orm an  v. U nited  S ta tes, supra, the Court held 
that a new trial was appropriate even though no evi­

8 Petitioner suggests that the double jeopardy issue received 
only “cursory” attention (Br. 8) because it was discussed in a 
single paragraph. Yet the extensive briefs of the parties had ad­
dressed the double jeopardy issue (see the briefs in No. 178, Octo­
ber Term, 1949: Pet, Br. 16-22, Resp. Br. 7-15, Pet. Reply Br. 
2-4), and Mr. Justice Black addressed the question in a concur­
ring opinion.

9 The brief per curiam opinion in Sapir does not state the reason 
for requiring petitioner to be acquitted. The petition for certiorari 
in that case (Pet. No. 534, October Term, 1954, p. 9) conceded 
that under Bryan the Double Jeopardy Clause did not always 
forbid a second trial after a reversal for insufficient evidence. Peti­
tioner argued, however, that the court of appeals had considered 
evidence outside the record in deciding that a second trial should 
be held (Pet. 7), that the government’s request for a new trial was 
untimely (Pet. 7-9), that petitioner had not asked for a new trial 
(Pet. 9-10), and that a new trial would be unjust because the 
prosecutor had a full opportunity to present evidence at the first 
trial (Pet. 10-12).

44



19

dence at all supported the theory on which the case 
had been submitted to the jury. The Court pointed out 
that there was ample evidence to convict Forman un­
der a correct theory, that a “new trial * * * was one 
of petitioner’s remedies” (361 U.S. at 425), and that 
even though Forman had requested an acquittal “the 
Court of Appeals has full power to go beyond the par­
ticular relief sought” {ib id .). The Court has continued 
to cite B ry a n  favorably. See N orth  Carolina v. Pearce, 
supra, 395 U.S. at 720, 721 n. 18 (” [w]e think those 
decisions are entirely-sound, and we decline to depart 
from the concept they reflect”) ; U nited S ta tes  v. Jorn , 
400 U.S. at 492-493 n. 3 (Stewart, J., dissenting).

B ry a n  has not, however, escaped criticism. Sev­
eral courts have limited B ry a n  to cases in which the 
defendant filed a motion for a new trial.10 Other courts

10 See, e.g., United States v. Barker, 558 F. 2d 899 (C.A. 8); 
Greene v. Massey, 546 F. 2d 51 (C.A. 5), certiorari granted, 
June 20,1977 (No. 76-6617) ; United States v. Robinson, 545 F. 2d 
301, 305 n. 5 (C.A. 2). See also 2 Wright, Federal Practice and 
Procedure:Criminal § 740 (1969).

Although Forman suggested that Sapir had established this 
distinction, that statement may have been based on a misreading 
of the issues presented in Sapir. See note 9, supra. In any 
event, we agree with Mr. Justice Harlan, concurring in Forman 
(361 U.S. at 428), that “the right of an appellate court to order 
a new trial does not turn on the relief requested by the defendant, 
and the Sapir case does not suggest such a distinction.” The motion 
for a judgment of acquittal and the motion for a new trial serve 
different functions; a defendant who seeks an acquittal 
argues that the evidence was absolutely insufficient to convict him, 
whereas a defendant may ask for a new trial because of trial error 
or because he seeks to persuade the district court to grant a new

45



20

have adopted the approach of Mr. Justice Black in 
B ry a n  by concluding that a second trial could be held 
only if there are equitable reasons for doing so.11 Some 
courts and commentators have called for the overrul­
ing of B rya n .12

These views are based on the arguments we have 
outlined at pages 15-16, supra, and the essential belief 
that the prosecution, having failed to introduce suf­

trial in the interests of justice even though the evidence is margin­
ally sufficient. Under 28 U.S.C. 2106 an appellate court may grant 
whatever relief is just and appropriate, and “the Court of Appeals 
has full power to go beyond the particular relief sought” (Forman, 
supra, 361 U.S. at 425). The court should be empowered to grant an 
acquittal even though the defendant asked only for a new trial, 
and it should be empowered to grant a new trial even if the 
defendant asked only for an acquittal. A defendant entitled to an 
acquittal should not be denied that relief just because he also 
requests a new trial in the event that an appellate court should 
conclude that an acquittal would be unjustified. The idea that the 
appellate court is confined to the relief the defendant requested 
could be supported only on a rigid view of “waiver” of double 
jeopardy interests that was rejected in United States v. Dinits, 
supra. See also United States v. Wiley, 517 F. 2d 1212, 1217 n. 24 
(C.A. D.C.).

11 See, e.g., United States v. Wiley, supra, 517 F. 2d at 1219-1221 
(new trials should be allowed when circumstances beyond the 
prosecutor’s control, including legal error at trial, prevented the 
introduction of sufficient evidence); United States v. Howard, 432 
F. 2d 1188, 1191 (C.A. 9) (opinion of Ely and Hufstedler, J J .)  ; 
United States v. Steinberg, 525 F. 2d 1126, 1134-1135 (C.A. 2) 
(Friendly, J., concurring)

12 See, e.g., Sumpter v. DeGroote, 552 F. 2d 1206, 1209-1213 
(C.A. 7). See also Thompson, Reversals for Insufficient Evidence: 
The Emerging Doctrine of Appellate Acquitted, 8 Ind. L. Rev. 497 
(1975) ; Comment, Double Jeopardy: A New Trial After Appel­
late Reversal for Insufficient Evidence, 31 U. Chi. L. Rev. 365 
(1964).

46



21

ficient evidence at the first trial, should not be al­
lowed a second opportunity to convict. We, too, be­
lieve that these arguments suggest that second trials 
should be allowed only with caution after a conviction 
has been reversed for insufficient evidence; we do not, 
however, believe that a distinction between evidenti­
ary and procedural reversals can or should be drawn 
that would make second trials uniformly forbidden in 
the former case and uniformly permitted in the latter.
C. T H E R E  IS  N O  B R IG H T  L IN E  B E T W E E N  IN S U F F IC IE N C Y  OF EV ID EN CE 

A N D  LEGA L ERROR A T T R IA L

The legal standard that the court of appeals applies 
in passing on evidentiary arguments is a source of 
difficult questions. “ [T]he verdict of a jury must be 
sustained if there is substantial evidence, taking the 
view most favorable to the Government, to support 
it.” Glasser v. U nited  S ta tes, 315 U.S. 60, 80. What 
evidence is “substantial” is difficult to state in the 
abstract, and the sufficiency of the evidence depends 
upon the legal definition of the offense. The decision 
of a court of appeals to reverse a conviction because 
of “ insufficient evidence” rarely involves only a con­
clusion that proof of an essential fact is missing. In 
the pages that follow, we discuss some of the reasons 
that make it impossible to draw any inflexible line 
between legal and evidentiary problems.

1. Legal and factual issues may be inextricably intertwined

The prosecutor’s decision to introduce particular 
evidence at trial is guided by his understanding of

47



22

legal rules. There are many eases in which the prose­
cutor, the defendant, and the court may have some 
uncertainty about what the evidence must show in 
order to be sufficient. For example, federal weapons 
offenses require proof of an interstate nexus. But it 
is not always easy to predict which offenses require 
what proof of interstate travel of weapons or their 
owners. Compare U nited  S ta tes  v. Bass, 404 U.S. 336, 
with Scarborough  v. U nited S ta tes, No. 75-1344, de­
cided June 6, 1977.

The failure of a prosecutor to introduce particular 
proof of a sufficient interstate nexus may reflect noth­
ing other than a legal error—shared by the district 
court—about what the offense involves. The proof sub­
mitted to the jury may be sufficient to establish every 
element of the offense defined by the court’s instruc­
tions, yet an appellate court could hold that essential 
evidence was missing. Is this a legal error in the 
charge to the jury, or is it a factual deficiency amount­
ing to insufficient evidence"?

Other problems arise when Congress or the common 
law provides that one fact may be inferred from an­
other. Inferences are common in criminal trials; intent 
usually is inferred from objective facts, knowledge 
is inferred from circumstances, and other elements 
of the crime also must be proved indirectly. Yet all 
inferences present problems not only of constitution­
ality (see B arnes v. U nited  S ta tes, 412 U.S. 837) but 
also of the adequacy of the proof. In L ea ry  v. U nited  
S ta tes, 395 U.S. 6, the Court held that a particular

48



23

statutory inference was unconstitutional; with, the in­
ference removed, the evidence at the trial was insuffi­
cient. But relying on the inference in the first place 
was entirely a legal error, and a second trial was ap­
propriate if the evidence could he supplied in a proper 
way.13

Take another example. An indictment charges a 
single conspiracy, and the defendant contends that the 
evidence at trial showed multiple conspiracies. Is this 
variance, if established, a “failure of proof,” or is it 
a legal error in either (a) drafting the indictment, or 
(b) introducing too m uch  evidence? See U nited S ta tes  
v. B erto lo tti, 529 F.2d 149, 154, 160 (C.A. 2). Suppose, 
for any number of reasons, that the court of appeals is 
convinced that the defendant committed a crime, but 
not the one charged in the indictment; is such a case a 
“failure of proof” or an error in deciding what legal 
theory to put forth in the indictment ?

In many cases the prosecutor introduces proof that 
is more than sufficient to meet the Glasser standard,

13 Similarly, suppose there is a question whether the factfinder 
may “notice” a particular fact. There may be a question whether 
the name of a national bank is enough to prove that it is in fact 
a national bank for purposes of 18 U.S.C. 2113, or whether a jury 
may notice that lines of the American Telephone and Telegraph 
Co. cross state borders. In  a state prosecution the question arose 
whether the jury could notice that the defendant, who was present 
in court, was female (see Sumpter v. DeGroote, supra). Often the 
prosecutor fails to offer proof of such things only because he be­
lieves (perhaps incorrectly) that the factfinder may take notice of 
the obvious. I t  is possible to call these kinds of deficiency “fail­
ures of proof,” but it would be just as accurate to call them 
“mistakes of law” shared by the prosecutor and the court.

49



24

but the court of appeals later concludes that some por­
tion of that proof should have been excluded—for ex­
ample, because it was hearsay. The prosecutor may 
have relied on the district court’s legal error in admit­
ting the evidence and, because of that reliance, failed 
to offer other, admissible evidence that would have 
been cumulative. In cases of this sort sufficient evi­
dence was admitted in fact, and a second trial should 
be permitted so that admissible evidence may be sub­
stituted for the inadmissible evidence.

2. Even genuine deficiencies in the evidence may he attributable to 
the defendant or to legal error

The eases we have discussed above are ones in which 
the evidence submitted to the jury is sufficient to al­
low the jury to find all of the elements of the offense 
defined in the court’s charge, yet an appellate court 
later concludes that it was “really” insufficient under 
a correct legal standard. We believe that all of these 
cases should be treated, under the standard of B all 
and Tateo, just like any other legal error. A second 
trial should be permitted if the factual defect can be 
corrected.

The argument against holding a second trial is 
strongest when the evidence at trial is insufficient even 
under the view of the law taken by the trial court. 
Here, too, however, it is not always simple to isolate 
factual insufficiency from legal error.

In some cases the prosecutor introduces more than 
enough evidence to establish the commission of an of­

50



25

fense, but the defendant induces the court to give a 
charge to the jury erroneously requiring the jury to 
find facts that have not been proved at trial. For ex­
ample, in F orm an  v. U nited S ta tes , supra, the prose­
cutor introduced evidence that established that For­
man and Seijas conspired to evade income taxes. The 
defendants persuaded the district court that the pro­
secution was barred by the statute of limitations 
unless they had entered into a second conspiracy to 
conceal the first, and the court accordingly instructed 
the jury that it could convict only if it found a 
“concealment” conspiracy. That amounted to the 
direction of a verdict of acquittal, since there was no 
evidence that there had been such a conspiracy.

The jury convicted the defendants nevertheless. The 
evidence at the first trial was palpably insufficient to 
prove the offense that the district court defined for 
the jury, and the district court (if it believed its own 
erroneous legal theory) should have entered judg­
ments of acquittal. This Court had no difficulty in 
concluding, however, that a new trial was just and 
appropriate under 28 U.S.C. 2106, and consistent with 
the Double Jeopardy Clause.14

14 As Mr. Justice Whittaker explained, concurring, 361 U.S. at 
429, the defendant, “having asked [for] and obtained an erroneous 
but far more favorable charge than he was entitled to, certainly 
invited the error, benefited by it, and surely may not be heard to 
attack it as prejudicial to him” and then assert it as a reason why 
he may not be tried a second time.

51



26

F orm an  was an extreme case.15 Other, more common, 
procedural problems may lead to a failure of proof. A 
ruling by the trial court may erroneously preclude the 
introduction of essential probative evidence. The court 
may, for example, improperly suppress evidence on 
Fourth Amendment grounds or erroneously conclude 
that a particular statement does not fall within an ex­
ception to the hearsay rule. If the court then grants a 
mid-trial judgment of acquittal, the Double Jeopardy 
Clause would bar a second trial.16 But if the case goes 
to the jury, and the jury convicts the defendant, the 
defendant should not thereafter be able to plead the 
legal error as a reason why he may not be retried. The 
defendant is not entitled to a “windfall acquittal,” be­
cause he “acquire[s] no vested right [to] that error.”

15 See also United States v. Ciofii, 487 F. 2d 492 (C.A. 2), certio­
rari denied sub nom. Giuzio v. United States, 416 U.S. 995, in 
which the court withdrew from the jury the authority to convict 
on a legal theory supported by the evidence and submitted the 
case, instead, on a theory not supported by the evidence. The court 
of appeals found (487 F. 2d at 501) “no tenable distinction be­
tween a case like this where defendants have procured a reversal 
because the judge submitted the indictment to the jury on a wrong 
theory and one where they procured a reversal because the judge 
submitted a defective indictment, as in the classic case of United 
States v. Ball, 163 U.S. 662, 672 * * *.” Mr. Justice Brennan, dis­
senting from the denial of certiorari, recognized (416 U.S. at 997) 
that it was proper to remand for a second trial “although the 
Government’s evidence * * * may have been insufficient * *
(He argued, however, that there was an implied acquittal on the 
charge withdrawn from the jury.)

16 See United States v. Martin Linen Supply Go., No. 76-120, 
decided April 4,1977; United States v. Fay, 553 F. 2d 1247 (C.A. 
10) (erroneous grant of suppression motion in mid-trial, fol­
lowed by the entry of a judgment of acquittal).

52



27

U nited S ta tes  v. H ow ard, 432 F. 2d 1188, 1190 
(C.A. 9) (opinion of Madden, J .).17

In many cases the deficiency in the prosecution’s 
case may be attributable to the defendant. See, e.g., 
U nited  S ta tes  v. S m ith , 437 F. 2d 538 (C.A. 6), in 
which the prosecution was unable to overcome an in­
sanity defense because the defense had given inade­
quate notice and the defendant refused to submit to 
a psychiatric examination. Although the court of ap­
peals reversed the conviction for want of sufficient 
evidence of sanity, it was both just and constitu­
tionally permissible to remand the case for a second 
trial at which the prosecution could supply the evi­
dence that was missing at the first trial only because 
of the defendant’s tactics.18

17 In Howard the district court, at the urging of the defendant, 
denied the prosecution the benefit of a statutory presumption, but 
the jury nevertheless convicted. The court of appeals remanded 
the case for a second trial despite the fact that the evidence was 
insufficient without the assistance of the presumption. As Judges 
Ely and Hufstedler explained in a separate opinion (432 F. 2d at 
1191), “the prosecution, through no fault of its own, had been 
deprived of an advantage to which it was entitled * * *. In these 
circumstances, its case has not been fully developed, and it cannot 
be faulted for the deficiency of proof which requires reversal.”

18 See United States v. Wiley, supra, 517 F. 2d at 1221, in which 
the court of appeals, although critical of Bryan, identified situa­
tions in which a second trial should be allowed despite insufficient 
evidence at the first trial: “the Government may [establish the 
propriety of a second trial] by pointing to unusual circumstances 
which denied it a fair chance to prove its case. * * * Retrials 
would also appear permissible, for example, where the Govern­
ment was prevented from introducing sufficient evidence by an 
erroneous ruling of the trial judge, improperly excluding or sup­
pressing Government evidence or denying a reasonable motion to 
reopen its case or to obtain a brief continuance to supply addi­
tional evidence.”

53



28

In all of the eases we have discussed above, a legal 
error by the court, by the prosecutor, by the defense, 
or by some combination of them produced a defect in 
the evidence. Petitioner argues that these and other 
problems may be put to one side, because in the pres­
ent case no legal error was responsible for the de­
ficiency in the evidence. This is not necessarily an ac­
curate characterization of this case. The court of 
appeals reversed petitioner’s conviction principally 
because the expert witnesses for the prosecution did 
not give their opinions on the ultimate issue of peti­
tioner’s sanity (see A. 157). Whether expert witnesses 
are required  to testify on the ultimate issue is entirely 
a legal question, and the defect in the evidence there­
fore may be related to a legal assumption, shared by 
the prosecutor and by the district court, that such 
evidence is unnecessary.19

19 Fed. K. Evid. 704 provides that expert testimony is not “ob­
jectionable'’ because it “embraces an ultimate issue to be decided by 
the trier of fact.” But this is a new rule in federal practice; older 
cases forbade such testimony. See McCormick, Handbook of the 
Law of Evidence § 12 (Cleary ed. 1972). The jury usually is al­
lowed to infer from the expert’s background testimony whether 
the defendant’s mental disease significantly diminished his capac­
ity to obey the law, and we have not discovered any other case hold­
ing or implying that the expert witnesses must address this ques­
tion directly. The court’s holding in this regard, to the extent it 
makes opinion testimony on the ultimate issue indispensible, there­
fore is a departure from precedent.

Moreover, the court of appeals’ holding in this regard appears 
to take a different approach to insanity issues than does United 
States v. Dube, 520 F. 2d 250 (C.A. 1), which held that the evi­
dence of a defendant’s sanity may be sufficient even though the 
prosecution presents no expert witnesses; the Dube court con-

54



29

3. An inflexible rule barring retrials would deter appellate courts
from giving defendants the benefit of the doubt in close cases

We do not believe that even relatively uncluttered 
questions of fact can be analyzed in a way that would 
isolate certain categories of cases in which retrial is 
never permitted. This Court explained in U nited  
S ta tes  v. Tateo, supra, 377 U.S. at 466, that “ it is at 
least doubtful that appellate courts would be as 
zealous as they now are in protecting against the 
effects of improprieties at * * * trial * * * if they 
knew that reversal of a conviction would put the ac­
cused irrevocably beyond the reach of further prose­
cution.” That observation applies to cases in which 
the evidence may be insufficient no less than to cases 
in which the trial may have been infected by prose­
cutorial error.

There is no simple device for separating sufficient 
evidence from insufficient evidence. There are many
eluded that the jury may choose to discount the analysis of the 
defendant’s experts, and that information supplied by lay wit­
nesses may be ample to allow the jury to conclude that the defend­
ant was sane at the time of the crime. Dube thus holds that in 
some cases neither expert witnesses nor testimony on the ultimate 
issues is necessary.

I f  the court of appeals in the present case had followed the 
analysis of Dube, it probably would have affirmed petitioner’s con­
viction. This illustrates, we believe, that the court’s ^evidentiary 
insufficiency” holding had strong procedural overtones. Any 
deficiency in the evidence at trial may have been caused by the 
prosecutor’s beliefs about the types of proof that were required. 
(Although we have not presented this apparent conflict among 
the courts of appeals as a question for resolution by this Court, wye 
do not thereby concede that the court of appeals resolved the issue 
correctly in the present case.)

55



30

cases in which the district judge and a unanimous 
jury are convinced of the defendant’s guilt, yet the 
court of appeals is skeptical. I t  is not unusual for a 
-court of appeals to conclude that the evidence of guilt 
is sufficient “ although only by a hair’s breadth”
( U nited  S ta tes  v. L e fk o w itz , 284 P. 2d 310, 315 (C.A. 
2), or that it is almost (but not quite) sufficient, or 
that it is technically deficient in an easily remediable 
way (e.Q., Cook v. U nited  S ta tes, 362 P. 2d o48, 549 
(C.A. 9). When the evidence is on the borderline 
between sufficiency and insufficiency, a court might 
hesitate to declare the evidence deficient if it knew 
that such a declaration must bring the prosecution to 
an end.

As a practical matter, it may be essential to allow 
appellate courts the option of remanding for a second 
trial in cases where the sufficiency of the evidence is 
doubtful. When the reviewing court perceives the 
issue of guilt to be close, a rule forbidding it to 
remand for another trial would provide substantial 
incentive to resolve difficult issues in favor of af­
firmance, lest the guilty go free. The rule allowing 
retrials permits appellate courts to resolve uncer­
tainties in favor of the defendant without committing 
themselves to saying the final word on the issue of 
guilt or innocence.

A remand for a second trial is, in at least some 
cases, the remedy most consistent with an honest 
appraisal of the state of the evidence: neither strong

56



31

enough to permit the defendant to be convicted, nor 
weak enough to say with assurance that the evidence 
does not satisfy the Glasser standard. When these 
difficult cases arise, a remand for a second trial may 
be by far the fairest solution for all concerned.20

This may be such a case. The trial judge and the 
jury were persuaded of petitioner’s sanity. Two expert 
witnesses testified for the prosecution that petitioner 
knew what he was doing and had substantial control 
over his actions, but they did not explicitly state that 
he could conform his conduct to the requirements of 
the law on the day in question. The court of appeals 
observed that at least one lay witness gave testimony

20 We do not imply that an appellate court has an essentially 
unfettered power (similar to that granted to the district courts by 
Fed. E. Crim. P. 33) to grant new trials in the interests of justice 
despite the sufficiency of the evidence. Glasser provides the proper 
standard for appellate review. But wherever the line is drawn be­
tween sufficient and insufficient evidence, there will be cases very 
near it on either side, and it is in these difficult cases that the 
option of ordering a new trial is necesary to facilitate fair 
resolution.

Moreover, some state appellate courts possess the power to award 
new trials in the interest of justice despite the sufficiency of the 
evidence. Greene v. Massey, supra, may involve the exercise of that 
power by a state court (see Sosa v. State, 215 So. 2d 736, 737 Fla. 
Sup. Ct.). In these cases a defendant probably should have the 
right to insist upon a resolution of the sufficiency question if he 
would prefer to let the conviction (and the known sentence) stand 
rather than to subject himself to a second tria l; a motion for a new 
trial reveals that the defendant does not insist upon a final dispo­
sition. But once a defendant has opened up the possibility of a re­
mand for a new trial “in the interests of justice,” he should not be 
able to invoke a double jeopardy bar to the trial he requested. See 
also note 10, supyra.

57



32

establishing that petitioner behaved normally for ex­
tended periods, but that this testimony was under­
mined by an incident related on cross-examination (A. 
157). In these circumstances, the court concluded, the 
evidence had not “effectively” (ib id .) overcome the 
p rim a  facie  showing of insanity.

The court of appeals’ discussion strongly suggests 
that it found this to be a difficult case, in which it 
weighed not only the particular testimony but also its 
“effectiveness.” Cases of this sort are excellent ex­
amples of cases in which a second trial is a solution 
preferable to either affirmance of the conviction or 
outright acquittal.

A- Evidence relating to affirming defenses presents problems unlike 
those that arise when the proof does not establish one of the 
elements of the offense

Part of the rationale for allowing a second trial 
after a conviction has been reversed is that “the 
Double Jeopardy Clause does not guarantee a defend­
ant that the Government will be prepared, in all cir­
cumstances, to vindicate the social interest in law 
enforcement through the vehicle of a single proceeding 
for a given offense.” U nited S ta tes  v. Jorn , supra, 400 
TI.S. at 483-484 (plurality opinion). “ Corresponding 
to the right of an accused to be given a fair trial is the 
societal interest in punishing one whose guilt is clear 
after he has obtained such a trial.” U nited S ta tes  v. 
Tateo, supra, 377 U.S. at 466.

Many suffieiency-of-the-evidence problems arise 
when the prosecutor neglects or is unable to prove an

58



33

element of the offense. In such cases the appellate 
court is not confronted with a defendant “whose guilt 
is clear.” The failure to prove an element of the of­
fense beyond a reasonable doubt is a constitutional 
defect (see I n  re W in sh ip , 397 U.S. 358), and when 
the prosecutor has simply neglected (or been unable) 
to prove an essential element of the offense, the de­
fendant has a strong argument for an absolute acquit­
tal whether or not the jury has convicted him. But the 
problem is more difficult where, as here, the prosecutor 
established all of the elements of the offense beyond a 
reasonable doubt, and the question on appeal is 
whether the prosecutor also adequately overcame an 
affirmative defense.

Petitioner has conceded that he robbed the b an k  
(A. 158). This case therefore involves a defendant 
“whose guilt is clear” on the statutory elements of the 
offense. Since the burdens of proving or overcoming 
affirmative defenses are constitutionally distinct from 
the prosecutor’s burden to prove the elements of the 
offense,21 only prudential questions are involved in con­
sidering the sufficiency of evidence to overcome an af­
firmative defense. This Court has held that in federal 
cases the prosecutor must show beyond a reasonable 
doubt that the defendant was sane at the time of the 
offense (D avis v. U nited S ta tes, 160 U.S. 4 6 9 ) ; in that 
sense, sanity is an element of the offense. But the 
Constitution would be satisfied if Congress put the

21 See Patterson v. New York, No. 75-1861, decided June 17. 
1977; Speiser v. Randall, 357 U.S. 513, 523.

59



34

burden on defendants to establish insanity (Leland  v. 
Oregon, 343 TT.S. 790; as a constitutional matter, then, 
sanity and factual guilt are distinct.

Affirmative defenses often take a case well afield 
from the question whether the defendant committed 
the offense charged. In the present case, for example, 
the psychiatrists explored petitioner’s childhood de­
velopment and his ambivalent feelings toward his 
parents and siblings (e.g., A. 64—69, 77-82, 88). The 
prosecutor, who must be fully prepared to prove the 
elements of the offense charged in the indictment, will 
not always be prepared to overcome whatever ques­
tions may be raised by affirmative defenses.

When the elements of the offense have been estab­
lished beyond question—and when the evidence con­
cerning the affirmative defense is sufficiently strong to 
persuade a jury to convict and to persuade the dis­
trict court to deny a motion for a judgment of acquit­
tal—it is not unfair to permit a second trial to be held 
if an appellate court should later conclude that the 
evidence was weaker than the district court thought it 
was. Cases involving failure of proof only on an af­
firmative defense may be paradigms of cases in which 
society has an important interest in convicting those 
who are in fact guilty.

Moreover, when the sufficiency of the proof is ques­
tionable only with respect to an affirmative defense 
such as insanity, it is especially important in difficult 
cases that courts have the “safety valve” of remand­
ing for a second trial rather than resolving uncertain­

60



/

ties in favor of either acquittal or affirmance. That 
courts generally regard such a disposition as “just” 
and “appropriate” reflects both (1) the fact that there 
is little doubt that the defendant committed the acts 
constituting the crime and (2) the fact that questions 
of mental competency present such a “Serbonian 
Bog” 22 that an appellate court cannot be certain that 
its own evaluation of the defendant’s state of mind 
rests on footing more sure than the jury’s evaluation.23 
The resolution of close cases involving imponderables 
like sanity would not be facilitated by an inflexible 
rule denying appellate courts the middle ground of 
ordering a second trial.

The difference between affirmative defenses and 
other factual questions is illustrated by the fact that 
some federal courts and many state courts hold 
bifurcated trials. I f  a bifurcated trial had been held 
in the present case, the jury would have found peti­
tioner guilty of the offense charged, and that verdict 
would stand unimpeached. The jury then would have 
rejected petitioner’s insanity defense; the court of

22 United States v. Bass, 490 F. 2d 846, 851 (C.A. 5).
23 See, e.g., Amador Beltran v. United States, 302 F. 2d 48 (C.A.

1); United States v. Wilson, 399 F. 2d 459,464 (C.A. 4) (Sobeloff, 
J., dissenting) ; United States v. Bass, supra; United States v. 
Paries, 460 F. 2d 736 (C.A. 5) ; Watkins v. United States, 409 F. 2d 
1382 (C.A. 5), certiorari denied, 396 U.S. 921; United States v. 
Dunn, 299 F. 2d 548 (C.A. 6 ); United States v. Barfield, 405 F. 2d 
1209 (C.A. 6) ; United States v. Smith, 437 F. 2d 538 (C.A. 6); 
United States v. McGraw, 515 F. 2d 758 (C.A. 9); Julian v. United 
States, 391 F. 2d 279 (C.A. 9); Rucker v. United States, 288 F. 2d 
146 (C.A. D.C.) ; Hopkins v. United States, 275 F. 2d 155 (C.A. 
D .C .); Douglas v. United States, 239 F. 2d 52 (C.A. D.C.).

35

61



38

appeals would have reversed only that discrete por­
tion of the jury’s findings. If  the initial bifurcation 
would not have violated the Double Jeopardy Clause, 
there is no convincing reason why further proceedings 
on the insanity question alone would do so, since the 
finding of factual guilt would endure.24 This Court 
has upheld separate and limited retrials on the issue 
of disposition (see B ra d y  v. M aryland, 373 U.S. 83, 
88-91), and we believe that further proceedings seek­
ing to achieve the correct resolution of issues raised 
by an affirmative defense are not necessarily forbid­
den by the Double Jeopardy Clause.25

24 See United States v. Alvarez, 519 F. 2d 1036, 1049 (C.A. 3), 
another insanity case, in which the court of appeals explained 
that “the double jeopardy clause of the fifth amendment does not 
bar a retrial after a reversal on appeal so long as there was suf­
ficient evidence persented in the first trial to establish a prima 
facte case (footnote omitted). Alvarez permitted a second trial 
ofter reversal because of defects in the proof of sanity during the 
second portion of a bifurcated trial. The court concluded, in the 
exercise of its powers under 28 U.S.C. 2106, that the second trial 
should involve both the elements of the offense and the issue of 
sanity, a conclusion that appears to conflict with the practice in the 
District of Columbia, where a retrial would be limited to the sanity 
issues. Compare United States v. Wright, o il F. 2d 1311 (C.A. 
D.C.), with Whalem v. United States, 346 F. 2d 812 (C.A. D.C.). 
I t  is unnecessary in the present case to consider the issues that 
would be presented, at the second trial of petitioner, however, in 
light of his concession that he robbed the bank and the fact that 
the court of appeals did not specify whether the retrial, if held, 
should be limited to the isue of sanity. I t  apparently left that ques­
tion to be addressed in the first instance by the district court.

25 Cf. McGautha v. California, 402 U.S. 183, 208-220, which 
'holds that the Due Process Clause neither requires nor prohibits 
bifurcated penalty trials.

62



37

D . A P P E L L A T E  COURTS S H O U LD  BE P E R M IT T E D  TO R EQ U IR E OR ALLOW

SECOND T R IA LS W H E N  T H A T  COURSE IS  J U S T  A N D  REA SON A BLE

We have discussed the reasons why it is difficult, if 
not impossible, neatly to eategorize the many reasons 
that may require the reversal of a conviction. Conse­
quently, there is no simple test that would separate 
cases in which a retrial should be permitted from one 
in. which it should not. We agree with petitioner that 
if the prosecutor, after a full and fair opportunity to 
do so, fails to introduce evidence to make out one or 
more elements of the offense, that should be the end of 
the case. If the jury nevertheless convicts, the court 
of appeals should reverse and remand for the entry of 
a judgment of acquittal.

But cases are not always that simple. When legal 
and factual problems are intertwined, or when the evi­
dence of guilt is neither obviously sufficient nor obvi­
ously deficient, or when legal error prevents the 
prosecutor from having a full oportunity to present 
evidence, or when the evidentiary problem concerns 
only an affirmative defense, it is essential that the 
courts have the discretion to take a middle ground 
between acquittal and affirmance.

The appellate courts have exercised this discretion 
with restraint, concluding that such trials are just and 
appropriate under 28 U.S.C. 2106 only when one or 
more of these circumstances occurs. See, e.g., U nited  
S ta tes  v. W iley , 517 P. 2d 1212 (C.A. D.C.) ; U nited  
S ta tes  v. H ow ard, 432 F. 2d 1188, 1191 (C.A. 9)

63



38

(opinion of Ely and Hufstedler, JJ .). We believe that 
these cases correctly balance the competing interests 
of the defendant and the prosecution in concluding 
that no inflexible rule either forbidding or allowing 
second trials should be established. A defendant’s le­
gitimate double jeopardy interests, as well as his in­
terests in fair treatment, are fully protected by a rule 
prohibiting retrial when the prosecution inexcusably 
fails to prove one of the elements of a p rim a  facie  
case and permitting retrial in other situations. This is 
the aproach that has evolved in the courts of appeals 
in recent years, and we believe that it is sound.26

The disposition of petitioner’s case by the court of 
appeals here is consistent with this approach. The 
court did not mechanically remand for a new trial; 
it remanded the case, instead, to permit the prosecutor 
to outline for the district court what evidence he could 
offer at a second trial. Even if the prosecutor offers 
sufficient evidence of sanity, the district court need 
not allow a second trial if the prosecution had a full

26 In  addition to the cases cited in note 11, supra, see United 
States v. Smith, 437 F. 2d 538, 542 (C.A. 6 ) ; Dotson v. United 
States, 440 F. 2d 1224 (C.A. 10); United States v. Snider, 502 F. 
2d 645, 656 (C.A. 4 ); United States v. Koonee, 485 F. 2d 374 (C.A. 
8). Although these courts have not all formulated the principle 
in the same way we have expressed it here, we believe that we have 
distilled the essence of their approach. (To the extent these and 
other courts find significance in the presence or absence of a motion 
by the defendant for a new trial, we disagree with their approach 
for the reasons stated in note 10, supra.)

64



39

and fair opportunity to develop its case at the first 
trial (A. 158). In other words, the court of appeals 
made the propriety of a second trial depend upon a 
careful balancing of the equities.

The terms of the remand are just and appropriate 
in this ease. See also B rya n  v. U nited S ta tes, supra, 
338 U.S. at 560 (Black, J., concurring). If  the 
evidence at the first trial was defective only because 
of an unexplained prosecutorial lapse or because suf­
ficient evidence was unavailable, this case will come 
to an end without a second trial. If  the deficiency 
had some other cause, there is no compelling reason 
why petitioner should not be retried.27

2[ Tlie court of appeals did not identify with particularity the 
deficiencies in the evidence at petitioner’s trial (see pages 28, 31-32 
and note 19, supra), and so it is not possible to predict with confi­
dence whether the prosecutor will be able to prove facts sufficient 
to satisfy the court of appeals. The prosecutor can offer to ask the 
expert witnesses the questions that the court of appeals thought 
were central: whether petitioner “knew” the wrongfulness of his 
act and whether his mental illness “render [ed] him substantially 
incapable of conforming his conduct to the requirements of the 
law” (A. 156). The district court then would be required to 
decide whether affirmative answers to the first question and nega­
tive answers to the second would provide sufficient evidence and, 
if so, whether it was an excusable mistake for the prosecutor not 
to have asked those questions at the first trial. I f  the court found 
the prosecutor’s neglect to be justifiable—perhaps because based 
on the reasonable, albeit mistaken, belief that such questioning 
was unnecessary—the court could properly set the case for an­
other trial.

65



40

CONCLUSION

The judgment of the court of appeals should be 
affirmed.

Respectfully submitted.
D a n i e l  M . F r i e d m a n ,

A cting  Solicitor General.* 
B e n j a m i n  R .  C i v i l e t t i , 

A ssistan t A tto rn ey  General. 
F r a n k  H .  E a s t e r b r o o k ,  

A ssis tan t to the Solic itor General. 
M i c h a e l  W .  F a r r e l l ,
H e n r y  W a l k e r ,

A ttorneys.
O c t o b e r  1977.

* T h e  S o lic ito r G enera l is d isqualified  in  th is  case.

66



IN THE

g>uprrnu Court of tljc Unttrb States
OCTOBER TERM, 1977

No. 76-6528

DAVID WAYNE BURKS,
Petitioner,

v.

UNITED STATES OF AMERICA.

ON WRIT OF CERTIORARI TO THE UNITED STATES 
COURT OF APPEALS FOR THE SIXTH CIRCUIT

REPLY BRIEF FOR THE PETITIONER

The argument for the United States is fairly summed 
up in its brief at 11:

“ (W)here the defect at the first trial is based upon 
a mistake of law rather than upon simple factual 
insufficiency, or where the prosecutor cannot 
reasonably be faulted for any factual insufficiency, 
the interest in accurate resolution of criminal 
charges outweighs the interest of defendent in 
avoiding a second trial after conviction at the 
first.”

67



2

ARGUMENT

1. THE DEFECT AT THE FIRST TRIAL IS 
NOT BASED UPON “A MISTAKE OF LAW 
RATHER THAN SIMPLE FACTUAL INSUF­
FICIENCY . .

Whatever the merits of the “bright line” theory of 
the United States (Brief 21-36) in other contexts,1 
there is a “bright line” in the present case between 
insufficiency of the evidence and legal error at the trial. 
The Government argues:

“The court of appeals reversed petitioner’s convic­
tion principally because the expert witnesses for
the prosecution did not give their opinions on the
ultimate issue o f petitioner’s sanity.” At 10.

In United States v. Sm ith, 404 F.2d (1968), the 
Sixth Circuit established a new standard for determining 
whether at the time of the offense the defendent was 
capable of criminal responsibility. The standard was 
well known to the United States.2 The weight to be

‘a) Valid misunderstanding of legal rules (example: necessity 
of interstate nexus in federal firearms offenses, reliance upon 
statutory inferences later shown to be unconstitutional, variance 
between indictment and proof in conspiracy cases, scope of 
judicial notice of essential facts such as sex, national bank 
charter, etc.).

b) Errors attributable to defendent (example: erroneous 
charge requested by defendent; refusal of defendent to take 
mid-trial psychiatric exam).

c) Exclusion of necessary proof by the court.
2 The order for psychiatric examination set out the three 

questions required to be answered by the Smith rule of the Sixth 
Circuit. A.7. The defendent at arraignment had pleaded “not 
quilty by reason of insanity.” A.6.

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given lay testim ony had been discussed by the Sixth 
Circuit in United States v. Sm ith, 437 F.2d 538 (1970).

There were no evidentiary or substantive surprises, 
simply a failure by the Government to produce 
necessary evidence. The Sixth Circuit reversed because 
the Government failed to produce evidence to satisfy 
the Sm ith  criteria, not simply because the expert 
witnesses did not give their opinions on the ultimate 
issue o f insanity.

2. THIS IS NOT AN INSTANCE WHERE “THE 
PROSECUTOR CANNOT REASONABLY BE 
FAULTED FOR ANY FACTUAL INSUF­
FICIENCY . . . ”

This is the second reason advanced by the United
1

States for granting a new trial. But any reasonable 
prosecutor would have asked his expert witnesses 
questions which proved or disproved the ultimate fact. 
Because there was such a lack of questions by the 
prosecutor, the ultimate facts were never answered by 
witnesses called by the United States. The prosecutor 
was either negligent in not asking the Smith  questions 
or shrewd in not asking them because he knew the 
answers would be unfavorable.3

3Petitioner is not asserting that these questions need be asked 
verbatim. The proof on the insanity issue must be directed to the 
criteria adopted in Smith, however.

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CONCLUSION

The reversal below was for a failure of proof not 
attributable to any mistake of law. The prosecutor 
inexplicably failed to elicit proof o f the ultimate issue 
from the two expert witnesses he called. The court of 
appeals found the other evidence insufficient. The 
present case is not within that class of cases in which 
the United States presents some rationale for a limited 
right to  retrial in insufficiency of the evidence reversals. 
The present case falls within the general class of cases 
in which the reversal on appeal was because the 
evidence was simply insufficient.

Respectfully submitted,

BARTC. DURHAM, III 
1104 Parkway Towers 
Nashville, Tennessee 37219

A ttorney fo r  Petitioner

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