Five years after Bryan was decided, a similar claim of double jeopardy was presented to the Court in Sapir v. United States, 348 U. S. 373 (1955). Sapir had been convicted of conspiracy by a jury in the District Court. After the trial court denied a motion for acquittal, he obtained a reversal in the Court of Appeals, which held that the motion should have been granted since the evidence was insufficient to sustain a conviction. In a brief per curiam opinion, this Court, without explanation, reversed the Court of Appeals' decision to remand the petitioner's case for a new trial.

Concurring in the Sapir judgment, which directed the dismissal of the indictment, Mr. Justice Douglas indicated his basis for reversal:

"The correct rule was stated in Kepner v. United States, 195 U. S. 100, at 130, 'It is, then, the settled law of this court that former jeopardy includes one who has been acquitted by a verdict duly rendered . If the jury had acquitted, there plainly would be double jeopardy to give the Government another go at this citizen. If, as in the Kepner case, the trial judge had rendered a verdict of acquittal, the guarantee against double jeopardy would prevent a new trial of the old offense. I see no difference when the appellate court orders a judgment of acquittal for lack of evidence." Id., at 374.

Up to this point, Mr. Justice Douglas' explication is, of course, precisely that urged on us by petitioner, and presumably would have been applicable to Bryan as well. But the concurrence in Sapir then undertook to distinguish Bryan:

"If petitioner [Sapir] had asked for a new trial, different considerations would come into play, for then the defendant opens the whole record for such disposition as might be just. See Bryan v. United States, 338 U. S. 552." 348 U. S., at 374. (Emphasis added.)

Shortly after Sapir, in Yates v. United States, 354 U. S. 298 (1957), the Court adopted much the same reasoning as that employed by the Sapir concurrence. In Yates, this Courtwithout citing Sapir-ordered acquittals for some defendants in the case, but new trials for others, when one of the main contentions of the petitioners concerned the insufficiency of the evidence. As an explanation for the differing remedies, the Court stated:

"We think we may do this by drawing on our power under 28 U. S. C. § 2106, because under that statute we would no doubt be justified in refusing to order acquittal even where the evidence might be deemed palpably insufficient, particularly since petitioners have asked in the alternative for a new trial as well as for acquittal. See Bryan v. United States, 338 U. S. 552." 354 U. S., at 328. The Yates decision thus paralleled Sapir's concurrence in the sense that both would allow a new trial to correct evidentiary insufficiency if the defendant had requested such relief-even as an alternative to a motion for acquittal. But the language in Yates was also susceptible of a broader reading, namely, that appellate courts have full authority to order a new trial as a remedy for evidentiary insufficiency, even when the defendant has moved only for a judgment of acquittal.

Three years later in Forman v. United States, 361 U. S. 416 (1960), the Court again treated these questions. There a conviction was reversed by the Court of Appeals due to an improper instruction to the jury, i. e., trial error, as opposed to evidentiary insufficiency. Although the petitioner in Forman had moved both for a new trial and judgment of acquittal, he argued that a new trial would not be appropriate relief since he had requested a judgment of acquittal with respect to the specific trial error on which this Court agreed with the Court of Appeals. Without distinguishing between a reversal due to trial error and reversal resulting solely from evidentiary

insufficiency, this Court held that a new trial did not involve double jeopardy:

"It is elementary in our law that a person can be tried a second time for an offense when his prior conviction for that same offense has been set aside by his appeal. United States v. Ball, 163 U. S. 662, 672 (1896). . Even though petitioner be right in his claim that he did not request a new trial with respect to the portion of the charge dealing with the statute of limitations, still his plea of double jeopardy must fail. Under 28 U. S. C. § 2106, the Court of Appeals has full power to go beyond the particular relief sought. See Ball, and other cases, supra." Id., at 425.

Until this stage in the Forman opinion the Court seemed to adopt the more expansive implication of Yates, i. e., that an appellate court's choice of remedies for an unfair convictionwhether reversal be compelled by failure of proof or trial error-would not turn on the relief requested by the defendant. The Forman decision, however, was not entirely free from ambiguity. In the course of meeting the petitioner's argument that Sapir demanded a judgment of acquittal, the Court noted two differences between those cases. In the first place, "the order to dismiss in Sapir was based on the insufficiency of the evidence, which could be cured only by the introduction of new evidence"; in Forman, however, "[t]he jury was simply not properly instructed.'" 361 U. S., at 426. In addition, "Sapir made no motion for a new trial in the District Court, while here petitioner [Forman] filed such a motion. That was a decisive factor in Sapir's case." Ibid. (Emphasis added.)

The Court's holdings in this area, beginning with Bryan, can hardly be characterized as models of consistency and clarity. Bryan seemingly stood for the proposition that an appellate court could order whatever relief was "appropriate"

Opinion of the Court

437 U.S. or "equitable," regardless of what considerations prompted reversal. A somewhat different course was taken by the concurrence in Sapir, where it was suggested that a reversal for evidentiary insufficiency would require a judgment of acquittal unless the defendant had requested a new trial. Yates, on the contrary, implied that new trials could be ordered to cure prior inadequacies of proof even when the defendant had not so moved. While not completely resolving these ambiguities, Forman suggested that a reviewing court could go beyond the relief requested by a defendant and order a new trial under some circumstances. In discussing Sapir, however, the Forman Court intimated that a different result might follow if the conviction was reversed for evidentiary insufficiency and the defendant had not requested a new trial.

After the Bryan-Forman line of decisions at least one proposition emerged: A defendant who requests a new trial as one avenue of relief may be required to stand trial again, even when his conviction was reversed due to failure of proof at the first trial. Given that petitioner here appealed from a denial of a motion for a new trial-although he had moved for acquittal during trial-our prior cases would seem to indicate that the Court of Appeals had power to remand on the terms it ordered. To reach a different result will require a departure from those holdings.

III

It is unquestionably true that the Court of Appeals' decision "represente [d] a resolution, correct or not, of some or all of the factual elements of the offense charged." United States v. Martin Linen Supply Co., 430 U. S. 564, 571 (1977). By deciding that the Government had failed to come forward with sufficient proof of petitioner's capacity to be responsible for criminal acts, that court was clearly saying that Burks' criminal culpability had not been established. If the District Court had so held in the first instance, as the reviewing court said it should have done, a judgment of acquittal would have

been entered" and, of course, petitioner could not be retried for the same offense. See Fong Foo v. United States, 369 U. S. 141 (1962); Kepner v. United States, 195 U. S. 100 (1904). Consequently, as Mr. Justice Douglas correctly perceived in Sapir, it should make no difference that the reviewing court, rather than the trial court, determined the evidence to be insufficient, see 348 U. S., at 374. The appellate decision unmistakably meant that the District Court had erred in failing to grant a judgment of acquittal. To hold otherwise would create a purely arbitrary distinction between those in petitioner's position and others who would enjoy the benefit of a correct decision by the District Court. See Sumpter v. DeGroote, 552 F. 2d 1206, 1211-1212 (CA7 1977).

The Double Jeopardy Clause forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding. This is central to the objective of the prohibition against successive trials. The Clause does not allow "the State. to make repeated attempts to convict an individual for an alleged offense," since "[t]he constitutional prohibition against 'double jeopardy' was designed to protect an individual from being subjected to the hazards of trial and possible conviction more than once for an alleged offense." Green v. United States, 355 U. S. 184, 187 (1957); see Serfass v. United States, 420 U. S. 377, 387–388 (1975); United States v. Jorn, 400 U. S. 470, 479 (1971).

"When a district court determines, at the close of either side's case, that the evidence is insufficient, it "shall order the entry of [a] judgment of acquittal Fed. Rule Crim. Proc. 29; see C. Wright, Federal Practice and Procedure § 462, p. 245 (1969).

• We recognize that under the terms of the remand in this case the District Court might very well conclude, after "a balancing of the equities," that a second trial should not be held. Nonetheless, where the Double Jeopardy Clause is applicable, its sweep is absolute. There are no "equities" to be balanced, for the Clause has declared a constitutional policy, based on grounds which are not open to judicial examination.