437 U.S. Syllabus UNITED STATES v. SCOTT CERTIORARI TO THE UNITED STATES COURT OF APPEALS No. 76-1382. Argued February 21, 1978-Decided June 14, 1978 Respondent, indicted for federal drug offenses, moved before trial and twice during trial for dismissal of two counts of the indictment on the ground that his defense had been prejudiced by preindictment delay. At the close of all the evidence the trial court granted respondent's motion. The Government sought to appeal the dismissals under 18 U. S. C. § 3731 (1976 ed.), which allows the United States to appeal from a district court's dismissal of an indictment except where the Double Jeopardy Clause of the Fifth Amendment prohibits further prosecution. The Court of Appeals, concluding that that Clause barred further prosecution, dismissed the appeal, relying on United States v. Jenkins, 420 U. S. 358. In that case the Court, following the principle underlying the Double Jeopardy Clause that the Government with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense, held that, whether or not a dismissal of an indictment after jeopardy had attached amounted to an acquittal on the merits, the Government had no right to appeal because "further proceedings of some sort, devoted to the resolution of factual issues going to the elements of the offense charged, would have been required upon reversal and remand." Held: Where a defendant himself seeks to have his trial terminated without any submission to either judge or jury as to his guilt or innocence, an appeal by the Government from his successful effort to do so does not offend the Double Jeopardy Clause, and hence is not barred by 18 U. S. C. § 3731 (1976 ed.). United States v. Jenkins, supra, overruled. Pp. 87-101. (a) The successful appeal of a judgment of conviction, except on the ground of insufficiency of the evidence to support the verdict, Burks v. United States, ante, p. 1, does not bar further prosecution on the same charge. A judgment of acquittal, whether based on a jury verdict of not guilty or on a ruling by the court that the evidence is insufficient to convict, may not be appealed and terminates the prosecution when a second trial would be necessitated by a reversal. Pp. 87-92. (b) Where no final determination of guilt or innocence has been made a trial judge may declare a mistrial on the motion of the prosecution or upon his own initiative only if "there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated," United States v. Perez, 9 Wheat. 579, 580, but where a defendant successfully seeks to avoid his trial prior to its conclusion by a motion for a mistrial, the Double Jeopardy Clause is not offended by a second prosecution. Such a motion by the defendant is deemed to be a deliberate election on his part to forgo his valued right to have his guilt or innocence determined by the first trier of fact. United States v. Dinitz, 424 U. S. 600, 609. Pp. 92-94. (c) At least in some cases, the dismissal of an indictment after jeopardy has "attached" may be treated on the same basis as the declaration of a mistrial even though a successful Government appeal would require further trial court proceedings leading to the factual resolution of the issue of guilt or innocence, see Lee v. United States, 432 U. S. 23; and the Court's growing experience with Government appeals calls for a re-examination of the rationale in Jenkins in light of Lee; United States v. Martin Linen Supply Co., 430 U. S. 564; and other recent expositions of the Double Jeopardy Clause. Pp. 94-95. (d) In a situation such as the instant one, where a defendant chooses to avoid conviction, not because of his assertion that the Government has failed to make out a case against him, but because of a legal claim that the Government's case against him must fail even though it might satisfy the trier of fact that he was guilty beyond a reasonable doubt, the defendant by deliberately choosing to seek termination of the trial suffers no injury cognizable under the Double Jeopardy Clause if the Government is permitted to appeal from such a trial-court ruling favoring the defendant. The Double Jeopardy Clause, which guards against Government oppression, does not relieve a defendant of the consequences of his voluntary choice. Pp. 95-101. 544 F. 2d 903, reversed and remanded. REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C. J., and STEWART, BLACKMUN, and POWELL, JJ., joined. BRENNAN, J., filed a dissenting opinion, in which WHITE, MARSHALL, and STEVENS, JJ., joined, post, p. 101. Deputy Solicitor General Frey argued the cause for the United States. With him on the brief were Acting Solicitor General Friedman, Assistant Attorney General Civiletti, Frank H. Easterbrook, and Sidney M. Glazer. William C. Marietti argued the cause for respondent. With him on the brief was Alexis J. Rogoski. MR. JUSTICE REHNQUIST delivered the opinion of the Court. On March 5, 1975, respondent, a member of the police force in Muskegon, Mich., was charged in a three-count indictment with distribution of various narcotics. Both before his trial in the United States District Court for the Western District of Michigan, and twice during the trial, respondent moved to dismiss the two counts of the indictment which concerned transactions that took place during the preceding September, on the ground that his defense had been prejudiced by preindictment delay. At the close of all the evidence, the court granted respondent's motion. Although the court did not explain its reasons for dismissing the second count, it explicitly concluded that respondent had "presented sufficient proof of prejudice with respect to Count I." App. to Pet. for Cert. 8a. The court submitted the third count to the jury, which returned a verdict of not guilty. The Government sought to appeal the dismissals of the first two counts to the United States Court of Appeals for the Sixth Circuit. That court, relying on our opinion in United States v. Jenkins, 420 U. S. 358 (1975), concluded that any further prosecution of respondent was barred by the Double Jeopardy Clause of the Fifth Amendment, and therefore dismissed the appeal. 544 F. 2d 903 (1976). The Government has sought review in this Court only with regard to the dismissal of the first count. We granted certiorari to give further consideration to the applicability of the Double Jeopardy Clause to Government appeals from orders granting defense motions to terminate a trial before verdict. We now reverse. I The problem presented by this case could not have arisen during the first century of this Court's existence. The Court has long taken the view that the United States has no right of appeal in a criminal case, absent explicit statutory authority. United States v. Sanges, 144 U. S. 310 (1892). Such authority was not provided until the enactment of the Criminal Appeals Act, Act of Mar. 2, 1907, ch. 2564, 34 Stat. 1246, which permitted the United States to seek a writ of error in this Court from any decision dismissing an indictment on the basis of "the invalidity, or construction of the statute upon which the indictment is founded." Our consideration of Government appeals over the ensuing years ordinarily focused upon the intricacies of the Act and its amendments.1 In 1971, however, Congress adopted the current language of the Act, permitting Government appeals from any decision dismissing an indictment, "except that no appeal shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution." 18 U. S. C. § 3731 (1976 ed.). Soon thereafter, this Court remarked in a footnote with more optimism than prescience that "[t]he end of our problems with this Act is finally in sight." United States v. Weller, 401 U. S. 254, 255 n. 1 (1971). For in fact the 1971 amendment did not end the debate over appeals by the Government in criminal cases; it simply shifted the focus of the debate from issues of statutory construction to issues as to the scope and meaning of the Double Jeopardy Clause. In our first encounter with the new statute, we concluded that "Congress intended to remove all statutory barriers to Government appeals and to allow appeals whenever the Constitution would permit.' United States v. Wilson, 420 U. S. 332, 337 (1975). Since up to that point Government appeals had been subject to statutory restrictions independent of the Double Jeopardy Clause, our previous cases construing the statute proved to be of little assistance in determining when the Double Jeopardy Clause of the Fifth Amendment would 1 A thorough account of the enactment and development of the Act is set out in Mr. Justice Harlan's opinion for the Court in United States v. Sisson, 399 U. S. 267, 291-296 (1970). prohibit further prosecution. A detailed canvass of the history of the double jeopardy principles in English and American law led us to conclude that the Double Jeopardy Clause was primarily "directed at the threat of multiple prosecutions," and posed no bar to Government appeals "where those appeals would not require a new trial." Id., at 342. We accordingly held in Jenkins, supra, at 370, that, whether or not a dismissal of an indictment after jeopardy had attached amounted to an acquittal on the merits, the Government had no right to appeal, because "further proceedings of some sort, devoted to the resolution of factual issues going to the elements of the offense charged, would have been required upon reversal and remand." 2 3 If Jenkins is a correct statement of the law, the judgment of the Court of Appeals relying on that decision, as it was bound to do, would in all likelihood have to be affirmed. Yet, though our assessment of the history and meaning of the Double Jeopardy Clause in Wilson, Jenkins, and Serfass v. United States, 420 U. S. 377 (1975), occurred only three Terms ago, our vastly increased exposure to the various facets of the Double Jeopardy Clause has now convinced us that Jenkins 2 The rule established in Wilson and Jenkins was later described in the following terms: "[D]ismissals (as opposed to mistrials) if they occurred at a stage of the proceeding after which jeopardy had attached, but prior to the factfinder's conclusion as to guilt or innocence, were final so far as the accused defendant was concerned and could not be appealed by the Government because retrial was barred by double jeopardy. This made the issue of double jeopardy turn very largely on temporal considerations-if the Court granted an order of dismissal during the factfinding stage of the proceedings, the defendant could not be reprosecuted, but if the dismissal came later, he could." Lee v. United States, 432 U. S. 23, 36 (1977) (REHNQUIST, J., concurring). 3 The Government contends here that the District Court in Jenkins entered a judgment of acquittal in favor of Jenkins, but our opinion in that case recognized that it could not be said with certainty whether this was the case. See Jenkins, 420 U. S., at 367. |