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guilt, an appellate court determines that the prosecution has failed to prove guilt beyond a reasonable doubt. Given the requirements for entry of a judgment of acquittal, to permit a second trial would negate the purpose of the Double Jeopardy Clause to forbid a second trial in which the prosecution would be afforded another opportunity to supply evidence that it failed to muster in the first trial. Pp. 15–17.

(b) It makes no difference that a defendant has sought a new trial as one of his remedies, or even as the sole remedy, and he does not waive his right to a judgment of acquittal by moving for a new trial. Bryan v. United States, 338 U. S. 552; Sapir v. United States, 348 U.S. 373; Yates v. United States, 354 U. S. 298; and Forman v. United States, 361 U. S. 416, are overruled to the extent that they suggest such a

waiver. Pp. 17–18. 547 F.2d 968, reversed and remanded.

BURGER, C. J., delivered the opinion of the Court, in which all other Members joined except BLACKMUN, J., who took no part in the consideration or decision of the case.

Bart C. Durham III argued the cause and filed briefs for petitioner.

Frank H. Easterbrook argued the cause for the United States pro hac vice. With him on the brief were Acting Solicitor General Friedman, Assistant Attorney General Civiletti, and Michael W. Farrell.

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

We granted certiorari to resolve the question of whether an accused may be subjected to a second trial when conviction in a prior trial was reversed by an appellate court solely for lack of sufficient evidence to sustain the jury's verdict.

I

Petitioner Burks was tried in the United States District Court for the crime of robbing a federally insured bank by use of a dangerous weapon, a violation of 18 U. S. C. $ 2113 (d) (1976 ed.). Burks' principal defense was insanity. To prove this

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claim petitioner produced three expert witnesses who testified, albeit with differing diagnoses of his mental condition, that he suffered from a mental illness at the time of the robbery, which rendered him substantially incapable of conforming his conduct to the requirements of the law. In rebuttal the Government offered the testimony of two experts, one of whom testified that although petitioner possessed a character disorder, he was not mentally ill. The other prosecution witness acknowledged a character disorder in petitioner, but gave a rather ambiguous answer to the question of whether Burks had been capable of conforming his conduct to the law. Lay witnesses also testified for the Government, expressing their opinion that petitioner appeared to be capable of normal functioning and was sane at the time of the alleged offense.

Before the case was submitted to the jury, the court denied a motion for a judgment of acquittal. The jury found Burks guilty as charged. Thereafter, he filed a timely motion for a new trial, maintaining, among other things, that "[t]he evidence was insufficient to support the verdict." The motion was denied by the District Court, which concluded that petitioner's challenge to the sufficiency of the evidence was "utterly without merit.” 1

On appeal petitioner narrowed the issues by admitting the affirmative factual elements of the charge against him, leaving only his claim concerning criminal responsibility to be resolved. With respect to this point, the Court of Appeals agreed with petitioner's claim that the evidence was insufficient to support the verdict and reversed his conviction. 547 F. 2d 968 (CA6 1976). The court began by noting that "the government has the burden of proving sanity [beyond a reasonable doubt) once a prima facie defense of insanity has been raised." ? Id.,

1 Petitioner did not file a post-trial motion for judgment of acquittal, which he was entitled to do under Fed. Rule Crim. Proc. 29 (c).

2 Although the Court of Appeals did not cite Davis v. United States, 160 U. S. 469 (1895), that decision would require this allocation of burdens.

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at 969. Petitioner had met his obligation, the court indicated, by presenting "the specific testimony of three experts with unchallenged credentials.” Id., at 970. But the reviewing court went on to hold that the United States had not fulfilled its burden since the prosecution's evidence with respect to Burks' mental condition, even when viewed in the light most favorable to the Government, did not "effectively rebu[t]” petitioner's proof with respect to insanity and criminal responsibility. Ibid. In particular, the witnesses presented by the prosecution failed to "express definite opinions on the precise questions which this Court has identified as critical in cases involving the issue of sanity.” Ibid.

At this point, the Court of Appeals, rather than terminating the case against petitioner, remanded to the District Court "for a determination of whether a directed verdict of acquittal should be entered or a new trial ordered.” Ibid. Indicating that the District Court should choose the appropriate course "from a balancing of the equities,” ibid., the court explicitly adopted the procedures utilized by the Fifth Circuit in United States v. Bass, 490 F. 2d 846, 852–853 (1974), “as a guide” to be used on remand:

“[W]e reverse and remand the case to the district court where the defendant will be entitled to a directed verdict of acquittal unless the government presents sufficient additional evidence to carry its burden on the issue of defendant's sanity. As we noted earlier, the question of sufficiency of the evidence to make an issue for the jury on the defense of insanity is a question of law to be decided by the trial judge. ... If the district court, sitting without the presence of the jury, is satisfied by the government's presentation, it may order a new trial. . . Even if the government presents additional evidence, the district judge 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.”

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The Court of Appeals assumed it had the power to order this "balancing" remedy by virtue of the fact that Burks had explicitly requested a new trial. As authority for this holding the court cited, inter alia, 28 U. S. C. $ 2106,9 and Bryan v. United States, 338 U. S. 552 (1950). 547 F. 2d, at 970.

II The United States has not cross-petitioned for certiorari on the question of whether the Court of Appeals was correct in holding that the Government had failed to meet its burden of proof with respect to the claim of insanity. Accordingly, that issue is not open for review here. Given this posture, we are squarely presented with the question of whether a defendant may be tried a second time when a reviewing court has determined that in a prior trial the evidence was insufficient to sustain the verdict of the jury.

Petitioner's argument is straightforward. He contends that the Court of Appeals' holding was nothing more or less than a decision that the District Court had erred by not granting his motion for a judgment of acquittal. By implication, he argues, the appellate reversal was the operative equivalent of a district court's judgment of acquittal, entered either before or after verdict. Petitioner points out, however, that had the District Court found the evidence at the first trial inadequate, as the Court of Appeals said it should have done, a second trial would violate the Double Jeopardy Clause of the

3 Title 28 U.S. C. 2106 provides:

"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."

* There is no claim in this case that the trial court committed error by excluding prosecution evidence which, if received, would have rebutted any claim of evidentiary insufficiency.

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Fifth Amendment. Therefore, he maintains, it makes no difference that the determination of evidentiary insufficiency was made by a reviewing court since the double jeopardy considerations are the same, regardless of which court decides that a judgment of acquittal is in order.

The position advanced by petitioner has not been embraced by our prior holdings. Indeed, as the Court of Appeals here recognized, Bryan v. United States, supra, would appear to be contrary. In Bryan the defendant was convicted in the District Court for evasion of federal income tax laws. Bryan had moved for a judgment of acquittal both at the close of the Government's case and when all of the evidence had been presented. After the verdict was returned he renewed these motions, but asked—in the alternative-for a new trial. These motions were all denied. The Court of Appeals reversed the conviction on the specific ground that the evidence was insufficient to sustain the verdict and remanded the case for a new trial. Certiorari was then granted to determine whether the Court of Appeals had properly ordered a new trial, or whether it should have entered a judgment of acquittal. In affirming the Court of Appeals, this Court decided, first, that the Court of Appeals had statutory authority, under 28 U.S.C. § 2106, to direct a new trial. But Bryan had also maintained that notwithstanding $ 2106 a retrial was prohibited by the Double Jeopardy Clause, & contention which was dismissed in one paragraph:

“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, including denial of his motion for judgment of acquittal. '... [W]here the accused successfully seeks review of a conviction, there is no double jeopardy upon a new trial.' Francis v. Resweber, 329 U. S. 459, 462. See Trono v. United States, 199 U. S. 521, 533–534.” 338 U. S., at 560.

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