468 U.S. 317 (1984)
In 1981 petitioner was indicted in the United States District Court for the District of Columbia. The indictment charged two counts of distributing a controlled substance in violation of 21 U.S.C. § 841(a)(1) and one count of conspiring to distribute a controlled substance in violation of 21 U.S.C. § 846.1
At the close of the Government’s case in chief and again before submission of the case to the jury, petitioner moved for judgment of acquittal on the ground that the evidence was insufficient to support a conviction, but both motions were denied.2 The jury acquitted petitioner of one substantive count but was unable to reach a verdict on the remaining two counts.3
The District Court declared a mistrial as to the two unresolved counts and scheduled a retrial.4 Petitioner renewed his motion for judgment of acquittal based on the insufficiency of the evidence and additionally argued that retrial would violate the Double Jeopardy Clause.5 The District Court denied both motions, and petitioner appealed.6
The Court of Appeals for the District of Columbia Circuit dismissed the appeal for lack of jurisdiction under 28 U.S.C. § 1291. It concluded that the District Court’s ruling on the sufficiency motion was not appealable as a collateral order under Cohen v. Beneficial Industrial Loan Corp. The ruling went to the heart of the Government’s case on the merits.7 The Supreme Court granted certiorari because of a conflict with the Third Circuit’s decision in United States v. McQuilkin and because of the implications of the decision for the administration of criminal justice.8
Whether the Court of Appeals had jurisdiction under 28 U.S.C. § 1291 to review the District Court’s denial of petitioner’s motion to bar retrial on double jeopardy grounds?9
Under 28 U.S.C. § 1291, courts of appeals have jurisdiction over final decisions of district courts.10 The collateral order doctrine of Cohen v. Beneficial Industrial Loan Corp. permits interlocutory appeal when an order conclusively determines a disputed question, resolves an important issue completely separate from the merits, and is effectively unreviewable on appeal from final judgment. Abney v. United States held that pretrial denials of double jeopardy claims satisfy this test because the protection against successive trials would be lost if review were deferred until after a second trial.11
Yes. The District Court’s denial of the motion to bar retrial on double jeopardy grounds after declaring a mistrial on the two unresolved counts conclusively resolved the double jeopardy claim.12 In the established facts the petitioner had already endured one trial that ended without verdict on those counts. He faced an imminent second trial. This made the claim collateral to the merits because it contests the government’s power to subject him to further proceedings rather than his guilt or innocence.13 Deferring review until after final judgment following retrial would impair the right, as the petitioner would have to endure the very trial the Double Jeopardy Clause seeks to prevent.14
The facts further show that the first trial had concluded and retrial had been scheduled before the claim was asserted, eliminating any risk of interrupting an ongoing jury proceeding.15
The Court of Appeals possessed jurisdiction under 28 U.S.C. § 1291 to review the double jeopardy claim.16
Related opinions on this issue
Justice Stevens dissented on the ground that the order denying the motion for judgment of acquittal based on insufficient evidence is not appealable either as a final decision or under the collateral order doctrine.17 He reasoned that the double jeopardy claim was entirely dependent on the validity of the acquittal motion, which itself went to the heart of the merits and therefore failed the separateness requirement of Cohen.18 Because no order terminating the first jeopardy had been entered, Stevens concluded there was no colorable double jeopardy claim that could support interlocutory review.19
Whether the Double Jeopardy Clause bars retrial after a mistrial due to a hung jury when the government presented insufficient evidence at the first trial?20
The Double Jeopardy Clause of the Fifth Amendment protects against multiple prosecutions for the same offense and applies only when some event such as an acquittal has terminated the original jeopardy.21 United States v. Perez established that a mistrial declared because of a hung jury constitutes manifest necessity and does not terminate jeopardy, permitting retrial.22 Burks v. United States bars retrial only after an unreversed appellate determination that the evidence at a completed trial was insufficient; it does not extend to hung-jury mistrials.23
No. In the established facts the jury acquitted on one substantive count but was unable to reach a verdict on the remaining two counts, prompting the District Court to declare a mistrial and schedule retrial.24 Jeopardy attached when the jury was sworn. It was not terminated by the mistrial, because the failure of the jury to agree is not an event equivalent to an acquittal under the settled rule of Perez and its progeny.25 The petitioner’s renewed motion for judgment of acquittal based on evidentiary insufficiency was denied, but that denial did not alter the fact that no terminating event had occurred.26
Consequently, the government remains entitled to resolution of the charges by verdict from a second jury regardless of the sufficiency of the evidence presented at the first trial.27
The Double Jeopardy Clause does not bar retrial of the two unresolved counts.28
Related opinions on this issue
Justice Brennan concurred in the jurisdictional holding but dissented on the merits.29 He argued that when a jury is discharged after failing to reach a verdict the first proceeding has objectively ended, and a new trial before a different jury would subject the defendant to the embarrassment, expense, and anxiety the Double Jeopardy Clause was designed to prevent.30 Brennan maintained that if the evidence at the first trial was constitutionally insufficient, Burks precludes retrial even though no court has yet declared the insufficiency, because the prosecution is entitled to only one full and fair opportunity to convict.31