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the crime of violating 18 U. S. C. $ 1955 (1976 ed.), without specifying that it did so only with respect to one theory of liability:
“The defendant having been set to the bar to be tried for the offense of unlawfully engaging in an illegal gambling business, in violation of Title 18, United States Code, Sections 1955 and 2, and the Court having allowed defendant's motion for judgment of acquittal at the close of government's evidence,
"It is hereby ORDERED that the defendant Thomas Sanabria be, and he hereby is, acquitted of the offense charged, and it is further ORDERED that the defendant
Thomas Sanabria is hereby discharged to go without day.” The Government itself characterized the District Court's ruling from which it sought to appeal as "a decision and order. excluding evidence and entering a judgment of acquittal.” Notice of Appeal.21 Similar language appears in
21 The Court of Appeals might have been warranted in dismissing the appeal for failure of the notice to specify the only arguably appealable ruling rendered below. The court believed that "[t]he critical ruling by the district court was that the indictment failed to charge a violation of $ 1955 on a numbers theory." 548 F. 2d, at 5 n. 5. But this "critical ruling," which the court below concluded was a "dismissal,” is not set forth in the notice of appeal. Since the Government is not authorized to appeal from all adverse rulings in criminal cases, it is especially important that it specify precisely what it claims to have been the appealable ruling.
The Court of Appeals, however, must have concluded that the notice was sufficient to bring up for review the legal ruling preceding the order excluding evidence. A mistake in designating the judgment appealed from is not always fatal, so long as the intent to appeal from a specific ruling can fairly be inferred by probing the notice and the other party was not misled or prejudiced. Daily Mirror, Inc. v. New York News, Inc., 533 F. 2d 53 (CA2 1976) (per curiam); Jones v. Nelson, 484 F. 2d 1165 (CA10 1973). The Government's "Designation of Issue [sic] on Appeal," apparently filed after the notice, did set forth that "[t]he trial judge erred in ruling that M. G. L. A. Chapter 271, Section 17 does not encompass an illegal numbers operation and as a result erred in granting the Motion to Strike and the Motion for Judgment of Acquittal."
its motion for reconsideration filed in the District Court. Indeed, the view that the trial court "dismissed” as to one "discrete basis of liability" appears to have originated in the opinion below. Thus, not only defense counsel and the trial court but the Government as well seemed in agreement that the trial court had made an evidentiary ruling based on its interpretation of the indictment.
We must assume that the trial court's interpretation of the indictment was erroneous. See n. 13, supra. But not every erroneous interpretation of an indictment for purposes of deciding what evidence is admissible can be regarded as a "dismissal.” Here the District Court did not find that the count failed to charge a necessary element of the offense, cf. Lee v. United States, 432 U. S. 23 (1977); rather, it found the indictment's description of the offense too narrow to warrant the admission of certain evidence. To this extent, we believe the ruling below is properly to be characterized as an erroneous evidentiary ruling,a2 which led to an acquittal for insufficient
22 The District Court's interpretation of the indictment as not encompassing a charge that the gambling business engaged in numbers betting in violation of state law did not by itself require that numbers evidence be excluded. Even if the indictment had charged only that the defendants had conducted an illegal gambling business engaged in horse-betting activities in violation of state law, evidence relating to numbers betting would have been admissible, absent actual surprise or prejudice, to show the defendants' connection with “all or part of [that] illegal gambling business.” 18 U. S. C. $ 1955 (a) (1976 ed.). As the Government repeatedly argued to the District Court, the violation of state law is a jurisdictional element which need only be proved with respect to the business.
The District Court's erroneous assumption that the numbers evidence had to be excluded may have resulted in part from the Government's failure to repeat in full its earlier argument, see supra, at 58, when the judge ruled that § 17 did not encompass numbers betting, see supra, at 58–59. See n. 5, supra.
Had the numbers evidence not been excluded, the judgment of acquittal would not have been entered, even if the court adhered to its ruling on the scope of the indictment, and the case would have gone to the jury, presumably with instructions that the jurors had to find the
evidence. That judgment of acquittal, however erroneous, bars further prosecution on any aspect of the count and hence bars appellate review of the trial court's error. United States v. Martin Linen Supply Co., 430 U. S., at 571; Fong Foo v. United States, 369 U. S. 141 (1962); Green v. United States, 355 U. S., at 188; United States v. Ball, 163 U. S., at 671.
Even if the Government were correct that the District Court "dismissed” the numbers allegation, in our view a retrial on that theory would subject petitioner to a second trial on the "same offense” of which he has been acquitted.23
It is Congress, and not the prosecution, which establishes and defines offenses. Few, if any, limitations are imposed by the Double Jeopardy Clause on the legislative power to define offenses. Brown v. Ohio, 432 U. S. 161, 165 (1977). But once Congress has defined a statutory offense by its prescription of the "allowable unit of prosecution," United States v. Universal C. I. T. Credit Corp., 344 U. S. 218, 221
gambling business to have engaged in horse betting, and the defendants to have conducted "all or part” of that gambling business.
23 We agree with the Court of Appeals, see supra, at 61, that there is no statutory barrier to an appeal from an order dismissing only a portion of a count. One express purpose of 18 U. S. C. $ 3731 (1976 ed.) is to permit appeals from orders dismissing indictments "as to any one or more counts." A "count" is the usual organizational subunit of an indictment, and it would therefore appear that Congress intended to authorize appeals from any order dismissing an indictment in whole or in part. Congress could hardly have meant appealability to depend on the initial decision of a prosecutor to charge in one count what could also have been charged in two, a decision frequently fortuitous for purposes of the interests served by 8 3731. To so rule would import an empty formalism into a statute expressly designed to eliminate "[t]echnical distinctions in pleadings as limitations on appeals by the United States." H. R. Conf. Rep. No. 91– 1768, p. 21 (1970); accord, S. Rep. No. 91-1296, p. 5 (1970). We note that the only Court of Appeals other than the court below that has considered this question reached a similar result. United States v. Alberti, 568 F. 2d 617 (CA2 1977).
(1952); Bell v. United States, 349 U. S. 81 (1955); Braverman v. United States, 317 U. S. 49 (1942); In re Nielsen, 131 U. S. 176 (1889), that prescription determines the scope of protection afforded by a prior conviction or acquittal. Whether a particular course of conduct involves one or more distinct “offenses” under the statute depends on this congressional choice. 24
The allowable unit of prosecution under $ 1955 is defined as participation in a single “illegal gambling business.” Congress did not assimilate state gambling laws per se into the federal penal code, nor did it define discrete acts of gambling as independent federal offenses. See H. R. Rep. No. 91–1549, p. 53 (1970). See also Iannelli v. United States, 420 U. S. 770, 784–790 (1975). The Government need not prove that the defendant himself performed any act of gambling prohibited by state law.25 It is participation in the gambling business that is a federal offense, and it is only the gambling business that must violate state law.24 And, as the Government recog
24 See Note, Twice in Jeopardy, 75 Yale L. J. 262, 268, 302–310 (1965). Because only a single violation of a single statute is at issue here, we do not analyze this case under the so-called “same evidence" test, which is frequently used to determine whether & single transaction may give rise to separate prosecutions, convictions, and/or punishments under separate statutes. See, e. 9., Gavieres v. United States, 220 V. S. 338, 342 (1911); Blockburger v. United States, 284 U. S. 299 (1932); Gore v. United States, 357 U. S. 386 (1958); Iannelli v. United States, 420 U. S. 770 (1975). See also Brown v. Ohio, 432 U. S. 161, 166–167, n. 6 (1977); United States v. Jones, 533 F. 2d 1387 (CA6 1976), cert. denied, 431 U. S. 964 (1977). Nor is the case controlled by decisions permitting prosecution under statutes defining as the criminal offense a discrete act, after a prior conviction or acquittal of a distinguishable discrete act that is a separate violation of the statute. See, e. 9., Ebeling v. Morgan, 237 U. S. 625 (1915); Burton v. United States, 202 U. S. 344 (1906). Cf. Ladner v. United States, 358 U. $. 169 (1958); Bell v. United States, 349 U. S. 81 (1955).
25 United States v. Hawes, 529 F. 2d 472, 478 (CA5 1976).
26 Numerous cases have recognized that 18 U. S. C. § 1955 (1976 ed.) proscribes any degree of participation in an illegal gambling business,
nizes, under $ 1955 participation in a single gambling business is but a single offense, "no matter how many state statutes the enterprise violated.” Brief for United States 31.
The Government's undisputed theory of this case is that there was a single gambling business, which engaged in both horse betting and numbers betting. With regard to this single business, participation in which is concededly only a single offense, we have no doubt that petitioner was truly acquitted.
We have recently defined an acquittal as “'a resolution, correct or not, of some or all of the factual elements of the offense charged.' Lee v. United States, 432 U. S., at 30 n. 8, quoting United States v. Martin Linen Supply Co., supra, at 571. Petitioner was found not guilty for a failure of proof on a key "factual element of the offense charged”: that he was "connected with” the illegal gambling business. See supra, at 59.27 Had the Government charged only that the business
except participation as a mere bettor. See, e. 9., United States v. DiMuro, 540 F. 2d 503, 507–508 (CA1 1976), cert. denied, 429 U. S. 1038 (1977); United States v. Leon, 534 F.2d 667,676 (CA6 1976); United States v. Brick, 502 F. 2d 219, 225 n. 17 (CA8 1974); United States v. Smaldone, 485 F. 2d 1333, 1351 (CA10 '1973), cert. denied, 416 U. S. 936 (1974); United States v. Hunter, 478 F. 2d 1019, 1021-1022 (CA7), cert. denied, 414 U. S. 857 (1973); United States v. Ceraso, 467 F. 2d 653, 656 (CA3 1972); United States v. Becker, 461 F. 2d 230, 232–233 (CA2 1972), vacated on other grounds, 417 U. S. 903 (1974). Similarly, the Government need not prove that each defendant participated in an illegal gambling business for more than 30 days (or grossed more than $2,000 in a single day), but only that the business itself existed for more than 30 days (or met the earnings criteria). United States v. Graham, 534 F. 2d 1357, 1359 (CA9 1976) (per curiam); United States v. Marrifield, 515 F. 2d 877, 880–881 (CA5 1975); United States v. Schaefer, 510 F. 2d 1307, 1312 (CA8), cert. denied sub nom. Del Pietro v. United States, 421 U. S. 975 (1975); United States v. Smaldone, supra, at 1351; see United States v. DiMario, 473 F. 2d 1046, 1048 (CA6), cert. denied, 412 U. S. 907 (1973).
27 The court's finding that petitioner was not "connected with” the gambling business necessarily meant that he was found not to conduct, finance, manage, supervise, direct, or own it. See 18 U.S. C. $ 1955 (a) (1976 ed.).