Procedure § 467, pp. 259-260 (1969); e. g., Powell v. United States, 135 U. S. App. D. C. 254, 257, 418 F. 2d 470, 473 (1969); Crawford v. United States, 126 U. S. App. D. C. 156, 158, 375 F. 2d 332, 334 (1967). Obviously a federal appellate court applies no higher a standard; rather, it must sustain the verdict if there is substantial evidence, viewed in the light most favorable to the Government, to uphold the jury's decision. See Glasser v. United States, 315 U. S. 60, 80 (1942). While this is not the appropriate occasion to re-examine in detail the standards for appellate reversal on grounds of insufficient evidence, it is apparent that such a decision will be confined to cases where the prosecution's failure is clear.11 Given the requirements for entry of a judgment of acquittal, the purposes of the Clause would be negated were we to afford the government an opportunity for the proverbial "second bite at the apple."

11

In our view it makes no difference that a defendant has sought a new trial as one of his remedies, or even as the sole remedy. It cannot be meaningfully said that a person "waives" his right to a judgment of acquittal by moving for a new trial. See Green v. United States, 355 U. S., at 191–198. Moreover, as Forman, 361 U. S., at 425, has indicated, an appellate court is authorized by § 2106 to "go beyond the particular relief sought" in order to provide that relief which

11 When the basic issue before the appellate court concerns the sufficiency of the Government's proof of a defendant's sanity (as it did here), a reviewing court should be most wary of disturbing the jury verdict:

"There may be cases where the facts adduced as to the existence and impact of an accused's mental condition may be so overwhelming as to require a judge to conclude that no reasonable juror could entertain a reasonable doubt. But in view of the complicated nature of the decision. to be made intertwining moral, legal, and medical judgments-it will require an unusually strong showing to induce us to reverse a conviction because the judge left the critical issue of criminal responsibility with the jury." King v. United States, 125 U. S. App. D. C. 318, 324, 372 F. 2d 383, 389 (1967) (footnote omitted).

would be "just under the circumstances." Since we hold today that the Double Jeopardy Clause precludes a second trial once the reviewing court has found the evidence legally insufficient, the only "just" remedy available for that court is the direction of a judgment of acquittal. To the extent that our prior decisions suggest that by moving for a new trial, a defendant waives his right to a judgment of acquittal on the basis of evidentiary insufficiency, those cases are overruled.

Accordingly, the judgment of the Court of Appeals is reversed, and the case is remanded for proceedings consistent with this opinion.

Reversed and remanded.

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

Syllabus

GREENE v. MASSEY, CORRECTIONAL
SUPERINTENDENT

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE

FIFTH CIRCUIT

No. 76-6617. Argued November 28, 1977-Decided June 14, 1978

On appeal of the first-degree murder convictions of petitioner and another, the Florida Supreme Court reversed by a per curiam opinion and ordered a new trial. That opinion, which a majority of four justices joined, stated that "the evidence was definitely lacking in establishing beyond a reasonable doubt that the defendants committed murder in the first degree," and that the "interests of justice require a new trial." Three justices dissented without opinion. Three of the justices who had joined the per curiam also filed a "special concurrence," which, though concerned only with trial error, concluded that "[f]or the reasons stated the judgments should be reversed and remanded for a new trial so we have agreed to the Per Curiam order doing so." Before the second trial defendants unsuccessfully contended in the state courts that the per curiam opinion was tantamount to a finding that the trial court should have directed a verdict of not guilty and that a second trial for first-degree murder would constitute double jeopardy; and the defendants were retried and convicted of first-degree murder. Petitioner and his codefendant, by appeal in the state courts and petitioner by application for habeas corpus in the District Court and Court of Appeals, unavailingly pressed their double jeopardy claims. Held: Burks v. United States, ante, p. 1, precludes a second trial once a reviewing court has determined that the evidence introduced at trial is insufficient to sustain the verdict. Standing by itself, the per curiam would therefore clearly compel the conclusion that petitioner's second trial violated the Double Jeopardy Clause. But the special concurrence leaves open the possibility that three of the justices who joined the per curiam were concerned simply with trial error and joined in the remand solely to give the defendants an error-free trial-even though they were satisfied that the evidence was sufficient to support the verdict. So that the ambiguity can be resolved, the case is remanded to the Court of Appeals for reconsideration in light of the Court's opinion and Burks, supra. Pp. 24–27.

546 F.2d 51, reversed and remanded.

BURGER, C. J., delivered the opinion of the Court, in which BRENNAN, STEWART, WHITE, MARSHALL, POWELL, and STEVENS, JJ., joined. PoWELL,

Opinion of the Court

J., filed a concurring opinion, post, p. 27. concurring in the judgment, post, p. 27. in the consideration or decision of the case.

437 U.S.

REHNQUIST, J., filed an opinion
BLACKMUN, J., took no part

John T. Chandler argued the cause for petitioner pro hac vice. With him on the briefs was Donald C. Peters.

Harry M. Hipler, Assistant Attorney General of Florida, argued the cause for respondent pro hac vice. With him on the brief were Robert L. Shevin, Attorney General, and Basil S. Diamond, Assistant Attorney General.

MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.

We granted certiorari to decide whether a State may retry a defendant after his conviction has been reversed by an appellate court on the ground that the evidence introduced at the prior trial was insufficient, as a matter of law, to sustain the jury's verdict.

I

On September 7, 1965, petitioner Greene and José Manuel Sosa were indicted by a Florida grand jury for the murder of Nicanor Martinez. The indictment charged that Sosa "did hire, procure, aid, abet and counsel" Greene to murder Martinez and that petitioner had carried out the premeditated plan, shooting the victim to death with a pistol. A state-court jury subsequently found the defendants guilty of first-degree murder, without a recommendation of mercy. Pursuant to Florida law at the time, the trial court sentenced both defendants to death.

On appeal to the Florida Supreme Court, the convictions of Greene and Sosa were reversed and new trials ordered. The reviewing court was sharply divided, however, with a majority composed of four justices joining a brief per curiam opinion which disposed of the case in the following terms:

"After a careful review of the voluminous evidence here we are of the view that the evidence was definitely lacking

in establishing beyond a reasonable doubt that the defendants committed murder in the first degree, and that the interests of justice require a new trial. The judgments are accordingly reversed and remanded for a new trial." Sosa v. State, 215 So. 2d 736, 737 (1968). (Emphasis added.)

Three justices dissented without opinion; we can do no more than speculate that the dissenting justices concluded there was sufficient evidence to support the jury verdict. In addition, a separate "special concurrence" was filed on behalf of three of the four justices who had also joined the per curiam opinion remanding for a new trial. These three concurring justices undertook a detailed examination of various asserted trial errors and found that on at least one claim the trial court had committed reversible error. This point concerned the improper admission of certain hearsay evidence which, in the opinion of the concurring justices, had a "potential probative force" that could have been "highly incriminating or critical to the establishment of an ultimate fact in dispute," Id., at 745. While the concurrence of the three justices makes no mention of evidentiary insufficiency as such, the opinion concludes:

"For the reasons stated the judgments should be reversed and remanded for a new trial so we have agreed to the Per Curiam order doing so." Id., at 746.

The "reasons stated" by the concurring justices thus concerned trial error, but paradoxically, the three explicitly joined the court's per curiam opinion which rested exclusively on the

1 The concurrence also concluded that the trial court had improperly ruled on a question concerning a subpoena duces tecum, the result of which was that the defense may have been deprived of evidence to which it was entitled. It is not clear from the opinion whether the concurring justices would have regarded this error, in and of itself, as requiring reversal.