source: Caselaw Access Project

author: Justice Rehnquist Justice Brennan, Justice Stevens,

license: Public Domain

text:
    RICHARDSON v. UNITED STATES
    No. 82-2113.
    Argued March 20, 1984
    Decided June 29, 1984
    Rehnquist, J., delivered the opinion of the Court, in which Burger, C. J., and White, Blackmun, Powell, and O’Connor, JJ., joined. Brennan, J., filed an opinion concurring in part and dissenting in part, in which Marshall, J., joined, post, p. 326. Stevens, J., filed a dissenting opinion, post, p. 332.

      Allan M: Palmer argued the cause and filed briefs for petitioner.

      Michael W. McConnell argued the cause pro hoc vice for the United States. With him on the brief were Solicitor

      General Lee, Assistant Attorney General Trott, Deputy Solicitor General Frey, and Kathleen A. Felton.

   Justice Rehnquist

delivered the opinion of the Court.

The jury trying petitioner acquitted him of one of several counts, but was unable to agree as to the others. The District Court declared a mistrial as to these counts of the indictment and set them down for retrial. Petitioner moved to bar his retrial, claiming that a second trial would violate the Double Jeopardy Clause of the Fifth Amendment because evidence sufficient to convict on the remaining counts had not been presented by the Government at the first trial. The District Court denied this motion, and the Court of Appeals dismissed petitioner’s appeal from that ruling for lack of jurisdiction under 28 U. S. C. § 1291. We now reverse that jurisdictional determination and proceed to address the merits of petitioner’s double jeopardy claim. We find the claim unavailing, since it lacks its necessary predicate, there having been no termination of original jeopardy.

Petitioner was indicted in the United States District Court for the District of Columbia on two counts of distributing a controlled substance, in violation of 21 U. S. C. § 841(a)(1), and one count of conspiring to distribute a controlled substance, in violation of 21 U. S. C. § 846. Twice — at the close of the Government’s case in chief and before submission of the case to the jury — he moved unsuccessfully for judgment of acquittal on the ground that the Government had failed to introduce sufficient evidence to warrant a finding of guilt beyond a reasonable doubt. The jury acquitted petitioner of one substantive narcotics violation, but was unable to reach a verdict on the two remaining counts. The District Court declared a mistrial as to these two remaining counts and scheduled a retrial, at which point petitioner renewed his motion for judgment of acquittal based on the legal insufficiency of the evidence. In addition, petitioner argued at this time that retrial was barred by the Double Jeopardy Clause of the Fifth Amendment. The District Court denied both motions and petitioner appealed.

The Court of Appeals for the District of Columbia Circuit dismissed petitioner’s appeal for want of jurisdiction. 226 U. S. App. D. C. 342, 702 F. 2d 1079 (1983). The Court of Appeals reasoned that its jurisdiction to review petitioner’s double jeopardy claim depended upon the appealability of the District Court’s ruling on petitioner’s motion for judgment of acquittal based on the insufficiency of the evidence. Because the District Court’s ruling on the latter motion was not a final judgment appealable under 28 U. S. C. § 1291, that ruling could only be reviewed if it fell within the collateral-order doctrine enunciated by this Court in Cohen v. Beneficial Industrial Loan Corp., 337 U. S. 541 (1949). The court held that the ruling on the legal sufficiency of the evidence was “anything but collateral,” and thus it lacked appellate jurisdiction to review that claim. 226 U. S. App. D. C., at 344-345, 702 F. 2d, at 1081-1082. Since the merits of petitioner’s double jeopardy claim depended entirely on reviewing the legal sufficiency of the evidence, the court concluded that petitioner had failed to present a double jeopardy claim which could be reviewed at that point. We granted certio-rari to review the decision of the Court of Appeals, 464 U. S. 890 (1983), because of a conflict with the decision reached by the Third Circuit in United States v. McQuilkin, 673 F. 2d 681 (1982), and because of the implications of the decision below for the administration of criminal justice.

Petitioner contends that under our decisions in Abney v. United States, 431 U. S. 651 (1977), and Burks v. United States, 437 U. S. 1 (1978), he is entitled to an interlocutory review of his claim that a second trial is barred by the Double Jeopardy Clause because the Government failed to introduce legally sufficient evidence to go to the jury at the first trial. Burks, however, involved no issue of interlocutory review, since it was an appeal from a final judgment of conviction. But Abney arose in the context of an interlocutory appeal. There we held that denial of a defendant’s, pretrial motion to dismiss an indictment on double jeopardy grounds was appealable as a “collateral order” under 28 U. S. C. § 1291. Despite the strong congressional policy embodied in § 1291 against interlocutory appeals in criminal cases, DiBella v. United States, 369 U. S. 121, 126 (1962), we held that the claim in Abney met the three-part test established in Cohen v. Beneficial Industrial Loan Corp., supra, because a double jeopardy claim contested the very power of the Government to bring a person to trial, and the right would be significantly impaired if review were deferred until after the trial. We said:

“Obviously, [this] aspec[t] of the guarantee’s protections would be lost if the accused were forced to ‘run the gauntlet’ a second time before an appeal could be taken; even if the accused is acquitted, or, if convicted, has his conviction ultimately reversed on double jeopardy grounds, he has been forced to endure a trial that the Double Jeopardy Clause was designed to prohibit. Com sequently, if a criminal defendant is to avoid exposure to double jeopardy and thereby enjoy the full protection of the Clause, his double jeopardy challenge to the indictment must be reviewable before that subsequent exposure occurs.” 431 U. S., at 662 (footnote omitted) (emphasis in original).

The Government contends, and the Court of Appeals agreed, that the double jeopardy claim raised by petitioner in this case does not meet the three-part test of the Cohen case. It argues that resolution of the double jeopardy claim inevitably involves evaluation of the sufficiency of the evidence against petitioner at the first trial, and therefore the claim is not completely collateral to the merits of the charge against petitioner. Cf. Abney, supra, at 660. To dispose of petitioner’s double jeopardy claim, the reviewing court would have to conclude that the evidence introduced at the first trial on these counts was insufficient as a matter of law to convict petitioner. This canvassing of the record would be indistinguishable from an assessment of the sufficiency of the evidence that would be reviewed after a judgment of conviction, and, of course, would go to the heart of the Government’s case on the merits. The Government and the Court of Appeals, therefore, are of the view that petitioner’s double jeopardy claim may be only reviewed following a final judgment of conviction after a second trial.

All of this may be conceded, and yet we think that the collateral-order doctrine applied in Abney should not be read so narrowly as to bar from interlocutory review the type of double jeopardy claim asserted here. Petitioner seeks review of the sufficiency of the evidence at his first trial, not to reverse a judgment entered on that evidence, but as a necessary component of his separate claim of double jeopardy. While consideration of petitioner’s double jeopardy claim would require the appellate court to canvass the sufficiency of the evidence at the first trial, this fact alone does not prevent the District Court’s order denying petitioner’s double jeopardy claim from being appealable.

The Government understandably expresses concern that interlocutory appeals of this nature may disrupt the administration of criminal justice. But allowing appeals such as this is completely consistent with the Court’s admonition in Cohen that the words “final decision” in § 1291 should have a “practical rather than a technical construction.” Cohen, 337 U. S., at 546. Petitioner’s first trial had ended and his second trial had been rescheduled before he asserted his double jeopardy claim to bar retrial. There was thus no effort to interrupt or delay proceedings during the time that a jury was empaneled or that the District Court had under advisement motions relating to the first trial. Moreover, we have indicated that the appealability of a double jeopardy claim depends upon its being at least “colorable,” United States v. MacDonald, 435 U. S. 850, 862 (1978), and that “frivolous claims of former jeopardy” may be weeded out by summary procedures, Abney, supra, at 662, n. 8. Cf. United States v. Head, 697 F. 2d 1200, 1204 (CA4 1982). These limitations, together with the continuing requirement that the order of the District Court which is appealed from be a “final” decision on the double jeopardy claim, provide adequate insurance against the evils which the Government fears. Thus, we hold that petitioner has raised a colorable double jeopardy claim appealable under 28 U. S. C § 1291.

Turning to the merits of petitioner’s double jeopardy claim, we reject it. He asserts that if the Government failed to introduce sufficient evidence to establish his guilt beyond a reasonable doubt at his first trial, he may not be tried again following a declaration of a mistrial because of a hung jury. While petitioner bases this contention on Burks v. United States, 437 U. S. 1 (1978), we do not agree that Burks resulted in the sweeping change in the law of double jeopardy which petitioner would have us hold. In Burks we held that once a defendant obtained an unreversed appellate ruling that the Government had failed to introduce sufficient evidence to convict him at trial, a second trial was barred by the Double Jeopardy Clause. Id., at 18. We overruled prior decisions such as Bryan v. United States, 338 U. S. 552 (1950), in which we held that if a defendant successfully sought reversal of his conviction on appeal because of insufficient evidence, retrial following such reversal was not barred by the Double Jeopardy Clause.

The Court in Burks did not deal with the situation in which a trial court declares a mistrial because of a jury’s inability to agree on a verdict. Thus, petitioner’s reliance on Burks in the context of the present case can be supported only if that decision laid down some overriding principle of double jeopardy law that was applicable across the board in situations totally different from the facts out of which it arose. But it is quite clear that our decision in Burks did not extend beyond the procedural setting in which it arose. Where, as here, there has been only a mistrial resulting from a hung jury, Burks simply does not require that an appellate court rule on the sufficiency of the evidence because retrial might be barred by the Double Jeopardy Clause. See Justices of Boston Municipal Court v. Lydon, 466 U. S. 294, 308-310 (1984).

The case law dealing with the application of the prohibition against placing a defendant twice in jeopardy following a mistrial because of a hung jury has its own sources and logic. It has been established for 160 years, since the opinion of Justice Story in United States v. Perez, 9 Wheat. 579 (1824), that a failure of the jury to agree on a verdict was an instance of “manifest necessity” which permitted a trial judge to terminate the first trial and retry the defendant, because “the ends of public justice would otherwise be defeated.” Id., at 580. Since that time we have had occasion to examine the application of double jeopardy principles to mistrials granted for reasons other than the inability of the jury to agree, whether the mistrial is granted on the motion of the prosecution, see Illinois v. Somerville, 410 U. S. 458 (1973), or on the motion of the defendant, see Oregon v. Kennedy, 456 U. S. 667 (1982); United States v. Dinitz, 424 U. S. 600 (1976). Nevertheless, we have constantly adhered to the rule that a retrial following a “hung jury” does not violate the Double Jeopardy Clause. Logan v. United States, 144 U. S. 263, 297-298 (1892). Explaining our reasons for this conclusion in Arizona v. Washington, 434 U. S. 497 (1978), we said:

“[Without exception, the courts have held that the trial judge may discharge a genuinely deadlocked jury and require the defendant to submit to a second trial. This rule accords recognition to society’s interest in giving the prosecution one complete opportunity to convict those who have violated its laws.” Id., at 509.

We are entirely unwilling to uproot this settled line of cases by extending the reasoning of Burks, which arose out of an appellate finding of insufficiency of evidence to convict following a jury verdict of guilty, to a situation where the jury is unable to agree on a verdict. Thirty-five years ago we said in Wade v. Hunter, 336 U. S. 684, 688-689 (1949):

“The double-jeopardy provision of the Fifth Amendment, however, does not mean that every time a defendant is put to trial before a competent tribunal he is entitled to go free if the trial fails to end in a final judgment. Such a rule would create an insuperable obstacle to the administration of justice in many cases in which there is no semblance of the type of oppressive practices at which the double-jeopardy prohibition is aimed. There may be unforeseeable circumstances that arise during a trial making its completion impossible, such as the failure of a jury to agree on a verdict. In such event the purpose of law to protect society from those guilty of crimes frequently would be frustrated by denying courts power to put the defendant to trial again. . . . What has been said is enough to show that a defendant’s valued right to have his trial completed by a particular tribunal must in some instances be subordinated to the public’s interest in fair trials designed to end in just judgments.”

We think that the principles governing our decision in Burks, and the principles governing our decisions in the hung jury cases, are readily reconciled when we recognize that the protection of the Double Jeopardy Clause by its terms applies only if there has been some event, such as an acquittal, which terminates the original jeopardy. See Justices of Boston Municipal Court, supra; Price v. Georgia, 398 U. S. 323, 329 (1970). Since jeopardy attached here when the jury was sworn, see United States v. Martin Linen Supply Co., 430 U. S. 564, 569 (1977), petitioner’s argument necessarily assumes that the judicial declaration of a mistrial was an event which terminated jeopardy in his case and which allowed him to assert a valid claim of double jeopardy.

But this proposition is irreconcilable with cases such as Perez and Logan, and we hold on the authority of these cases that the failure of the jury to reach a verdict is not an event which terminates jeopardy. Our holding in Burks established only that an appellate court’s finding of insufficient evidence to convict on appeal from a judgment of conviction is for double jeopardy purposes, the equivalent of an acquittal; it obviously did not establish, consistently with cases such as Perez, that a hung jury is the equivalent of an acquittal. Justice Holmes’ aphorism that “a page of history is worth a volume of logic” sensibly applies here, and we reaffirm the proposition that a trial court’s declaration of a mistrial following a hung jury is not an event that terminates the original jeopardy to which petitioner was subjected. The Government, like the defendant, is entitled to resolution of the case by verdict from the jury, and jeopardy does not terminate when the jury is discharged because it is unable to agree. Regardless of the sufficiency of the evidence at petitioner’s first trial, he has no valid double jeopardy claim to prevent his retrial.

Accordingly, we reverse the judgment of the Court of Appeals on the question of jurisdiction, and on the merits conclude that the District Court was correct in denying petitioner’s motion to bar retrial.

It is so ordered.

Justice Brennan,

with whom Justice Marshall joins, concurring in part and dissenting in part.

Petitioner was indicted and tried on two counts of distributing a controlled substance. He claims that the prosecution failed to present constitutionally sufficient evidence to sustain its case. The jury, perhaps due to the alleged inadequacy of the evidence, was unable to reach a verdict and was therefore dismissed. As a result of today’s decision, petitioner will be tried again on the same indictment before a new jury, notwithstanding the fact that, as we must assume, he was entitled to acquittal as a matter of law. It seems to me quite clear that he will thereby “be subject for the same offence to be twice put in jeopardy for life or limb.” U. S. Const., Arndt. 5. Yet the Court declares that, despite appearances, petitioner’s trial did not really end with the dismissal of the jury and that therefore his imminent retrial is not really a new trial at all. In my judgment, common sense and the Double Jeopardy Clause are not so incompatible.

I agree with the Court that petitioner’s claim is appealable under 28 U. S. C. § 1291 and that the case therefore turns on whether, if petitioner’s sufficiency-of-the-evidence claim is valid, retrial is barred. Relying on cases in which we have held that “retrial following a ‘hung jury’ does not violate the Double Jeopardy Clause,” ante, at 324, the Court asserts that “the failure of the jury to reach a verdict is not an event which terminates jeopardy,” ante, at 325. In so reasoning, the Court, in my view, improperly ignores the realities of the defendant’s situation and relies instead on a formalistic concept of “continuing jeopardy.” See Justices of Boston Municipal Court v. Lydon, 466 U. S. 294, 315-316 (1984) (Brennan, J., concurring in part and concurring in judgment). Apparently, under the Court’s approach, only an actual judgment of acquittal, or an unreversed conviction, would “terminate” jeopardy and thereby bar retrial. Accordingly, a defendant who is constitutionally entitled to an acquittal but who fails to receive one — because he happens to be tried before an irrational or lawless factfinder or because his jury cannot agree on a verdict — is worse off than a defendant tried before a factfinder who demands constitutionally sufficient evidence. Indeed, he is worse off than a guilty defendant who is acquitted due to mistakes of fact or law. See Arizona v. Rumsey, 467 U. S. 203, 211 (1984). I do not believe this paradoxical result is faithful to the principle we have repeatedly reaffirmed that the Double Jeopardy Clause “precludes retrial where the State has failed as a matter of law to prove its case despite a fair opportunity to do so.” Hudson v. Louisiana, 450 U. S. 40, 45, n. 5 (1981). See Justices of Boston Municipal Court v. Lydon, supra, at 314.

Instead, as I explained at greater length in Lydon, I believe a common-sense approach to claims of “continuing jeopardy” requires a court to ask, first, whether an initial proceeding at which jeopardy attached has now objectively ended, and, second, whether a new proceeding would violate the Constitution. 466 U. S., at 320-322. In answering the first question, we should look to the fundamental policies of the Double Jeopardy Clause, “namely, its concern that repeated trials may subject a defendant ‘to embarrassment, expense and ordeal and compe[l] him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty.’ . . . Jeopardy may be said to have terminated only when the posture of a trial in some objective sense leaves the defendant in such a position that resumption of proceedings would implicate those policies.” Id., at 320 (quoting Green v. United States, 355 U. S. 184, 187-188 (1957)). Employing that analysis, I have little trouble concluding that when a jury, unable to reach a verdict, is dismissed and a mistrial is declared, a defendant’s trial has come to an end. An entirely new trial on the same indictment before a new jury, presumably with much of the same evidence, will plainly subject the defendant to the kinds of risks and costs that the Double Jeopardy Clause was intended to prohibit. See Arizona v. Washington, 434 U. S. 497, 503-504 (1978). I therefore conclude that the declaration of a mistrial “terminated” one proceeding against petitioner.

In so concluding, I do not reject the longstanding rule, emphasized by the Court, that, in cases of “manifest necessity,” retrial may be permitted despite a mistrial. “The fact that a trial has ended does not . . . complete the constitutional inquiry; the Court has concluded [in several contexts] that strong policy reasons may justify subjecting a defendant to two trials in certain circumstances notwithstanding the literal language of the Double Jeopardy Clause.” Lydon, 466 U. S., at 308-309. Until the decision in Lydon, however, we did not seek to justify such a retrial by pretending that it was not really a new trial at all but was instead simply a “continuation” of the original proceeding. See ibid. In Arizona v. Washington, supra, for example, we reviewed the unusual circumstances that might permit retrial after a mistrial order. We did not, however, seek to evade the commonsense fact that such an order “terminates” the first trial. We explained that, “[u]nlike the situation in which the trial has ended in an acquittal or conviction, retrial is not automatically barred when a criminal proceeding is terminated without finally resolving the merits of the charges against the accused.” 434 U. S., at 505 (emphasis added). In short, the question whether a trial has ended is distinct from the question whether a new trial is permissible.

In answering the second question, I believe the mistrial cases on which the Court relies so heavily are quite beside the point. It is, of course, true, as the Court explains, that we have long held “ ‘that the trial judge may discharge a genuinely deadlocked jury and require the defendant to submit to a second trial.’” Ante, at 324 (quoting Arizona v. Washington, supra, at 509). But that proposition demonstrates only that petitioner’s new trial is not constitutionally barred simply because the original jury was unable to reach a verdict. Petitioner’s objection to the new trial is not, however, based on the fact that his trial ended with a hung jury. Instead, he contends that retrial is prohibited because the prosecution failed to present constitutionally sufficient evidence at the trial. That contention is, in my view, correct under Burks v. United States, 437 U. S. 1, 15-16 (1978), notwithstanding the fact that, in contrast to the situation in that case, no court has yet declared the evidence insufficient. The fundamental principle underlying Burks, and indeed most of our double jeopardy cases, is that the prosecution is entitled to one, and only one, full and fair opportunity to convict the defendant. When the prosecution has failed to present constitutionally sufficient evidence, it cannot complain of unfairness in being denied a second chance, and the interests in finality, shared by the defendant and society, strongly outweigh the reasons for a retrial. See ibid.; see also Arizona v. Washington, supra, at 503-504. These principles are no less applicable in a case in which the inadequacy of the evidence is not recognized by the trial judge.

Indeed, in Tibbs v. Florida, 457 U. S. 31 (1982), we explained that, unless a defendant can obtain review of a sufficiency claim prior to retrial, the protections established in Burks and its successors would become illusory. In that case, the Court held that state appellate reversal of a conviction as against the weight of the evidence does not bar retrial under Burks. In response to the fear expressed by the dissent that state appellate courts could mask reversals for insufficiency by characterizing them as based on the weight of the evidence, the Court explained:

“We held in Jackson [v. Virginia, 443 U. S. 307 (1979),] that the Due Process Clause forbids any conviction based on evidence insufficient to persuade a rational factfinder of guilt beyond a reasonable doubt. The Due Process Clause, in other words, sets a lower limit on an appellate court’s definition of evidentiary sufficiency. This limit, together with our belief that state appellate judges faithfully honor their obligations to enforce applicable state and federal laws, persuades us that today’s ruling will not undermine Burks.” 457 U. S., at 45 (footnote omitted).

The reasoning of Tibbs necessarily presupposes that the Double Jeopardy Clause bars retrial after the prosecution’s failure of proof at the first trial — even if that failure of proof is as yet judicially undeclared. If this were not so, the “masking” problem discussed in Tibbs would be irrelevant: the state appellate court could remand for retrial without addressing the insufficiency claim and the defendant would never be able to challenge the evidence at the first trial. See also id., at 51 (White, J., dissenting).

In sum, I believe that when a jury has been dismissed because of its inability to reach a verdict, the defendant’s trial has ended, in law as in common sense. A defendant who contends that the evidence at that trial was constitutionally insufficient, and that he was therefore entitled to a judgment of acquittal as a matter of law, plainly has a “colorable” claim that a second trial would violate the Double Jeopardy Clause and the trial judge’s denial of the claim is therefore . immediately appealable. And, finally, if the reviewing court decides the evidence was in fact inadequate, I believe further proceedings against the defendant for the same offense are barred under the rule in Burks. I would therefore remand the case for consideration of petitioner’s sufficiency claim on the merits.

Justice Stevens,

dissenting.

The dispositive question of appellate jurisdiction that is presented in this case is whether an order denying a motion for a judgment of acquittal on the ground that the evidence is legally insufficient is appealable as a final judgment. I believe that the order is not appealable; therefore, as a matter of law, not even a colorable double jeopardy question is presented.

I

After the District Court had discharged the jury because it was unable to agree upon a verdict on two counts of the indictment, petitioner filed two separate motions: (1) a motion for a judgment of acquittal on the ground that the evidence was legally insufficient to support a conviction; and (2) a motion to bar retrial on the ground that because he was “entitled to judgments of acquittal on those counts,” a second trial would violate the Double Jeopardy Clause. App. 15a. On Friday, September 11, 1981, the District Court entered a written order denying the first motion. Id., at 18a. Petitioner promptly filed a notice of appeal in which he described that order as having “denied motions for judgments of acquittal and by necessary implication double jeop. claim. ” Record 28. On Monday, September 13, 1981, in a colloquy with petitioner’s counsel, the District Court agreed that “the double jeopardy claim [that] hinged on the ruling [on the motion for] Judgment of Acquittal” had been denied implicitly.

Two separate questions of appellate jurisdiction were therefore presented to the Court of Appeals. Judge Wilkey’s opinion for the Court of Appeals correctly recognized the separate character of the two questions and correctly answered them both. First, if we separately consider the order denying the motion for a judgment of acquittal, it is perfectly clear that, because the District Court did not reach a final judgment, the motion is not appealable on its face as a “final decision,” 28 U. S. C. §1291, or under the “collateral order” exception to the final-judgment rule established in Cohen v. Beneficial Industrial Loan Corp., 337 U. S. 541 (1949).

Second, it is equally clear that unless petitioner was entitled to have his first motion granted, there was no basis in law for his dependent double jeopardy motion. Indeed, as petitioner recognized in his notice of appeal and in his colloquy with the District Court, the double jeopardy argument is entirely contingent on the validity of his first motion — the second “hinged” on the first; the denial of the first implicitly rejected the second. Because the order denying the principal motion is not appealable, it is difficult for me to understand how the Court can conclude that the order implicitly denying the dependent motion can either be appealable in its own right, or can convert the otherwise nonappealable, nonfinal order into an appealable order.

Plainly there can be no substance or “color” to a double jeopardy claim that does not identify some order terminating a first jeopardy as constituting a bar to a second trial. As long as the claim rested entirely on an asserted “entitlement” to such an order, the claim can be no stronger than the right to that order. If petitioner had obtained a favorable ruling on his motion for acquittal, a second trial would, of course, be barred. Without that ruling, however, there is not even an arguable basis for a double jeopardy claim.

II

The Court states that “petitioner’s argument necessarily assumes that the judicial declaration of a mistrial was an event which terminated jeopardy in his case and which allowed him to assert a valid claim of double jeopardy.” Ante, at 325. That is not the way I read the record. Rather, petitioner argues that because the evidence was insufficient, he was “entitled” to have his jeopardy terminated by an order granting his motion for a judgment of acquittal. Until such an order was entered, in view of the fact that he did not argue that the mistrial order itself constituted a termination of jeopardy, his jeopardy would continue.

different if the petitioner were claiming that the order declaring a mistrial was itself a bar to a second trial. If, for example, the jury had deliberated for only a few minutes and the prosecutor, fearful of an adverse verdict, had persuaded the trial judge to discharge the jury before it could fairly be said that they were deadlocked — in other words, when there was no “manifest necessity,” see Arizona v. Washington, 434 U. S. 497, 505-508 (1978)—the defendant might then argue that the mistrial order was itself tantamount to an acquittal that terminated the first jeopardy. This is not, however, such a case because petitioner does not challenge the order declaring a mistrial and he has no other order to which he can point as constituting a bar to a second trial.

III

Although I recognize the precedential authority of Abney v. United States, 431 U. S. 651 (1977), I do not believe that case acts as a vacuum cleaner of appealability for every claim couched as a double jeopardy violation. In Abney, the Court carefully noted that “it is true that a pretrial order denying a motion to dismiss an indictment on double jeopardy grounds lacks the finality traditionally considered indispensable to appellate review,” id., at 659, but that such orders fell within the Cohen collateral-order exception to the final-judgment rule. 431 U. S., at 659. To begin with, I have already noted that the denial of a motion for a judgment of acquittal based on insufficient evidence cannot separately survive the Cohen analysis. More important, I believe that the Court’s discussion of Cohen’s collateral-issue prong in Abney supports the view that Abney was not intended to reach a situation such as that before us today. The Court stated:

“Moreover, the very nature of a double jeopardy claim is such that it is collateral to, and separable from, the principal issue at the accused’s impending criminal trial, i. e., whether or not the accused is guilty of the offense charged. In arguing that the Double Jeopardy Clause of the Fifth Amendment bars his prosecution, the defendant makes no challenge whatsoever to the merits of the charge against him. Nor does he seek suppression of evidence which the Government plans to use in obtaining a conviction. Rather, he is contesting the very authority of the Government to hale him into court to face trial on the charge against him. The elements of that claim are completely independent of his guilt or innocence. . . . Thus, the matters embraced in the trial court’s pretrial order here are truly collateral to the criminal prosecution itself in the sense that they will not ‘affect, or ... be affected by, decision of the merits of this case.’” 431 U. S., at 659-660 (quoting Cohen, 337 U. S., at 546) (citations omitted).

Although the Court began with a broad general reference to “a double jeopardy claim,” its specific discussion of the particular double jeopardy claim involved highlights differences between it and the one here. Here, the petitioner is challenging the merits of the charge against him; the elements of his insufficient-evidence claim are not completely independent of his guilt or innocence; the matters embraced within the trial court’s order will affect the decision of the merits of the case. Thus, although broadly written, Abney is not broad enough to support the conclusion “that petitioner has raised a colorable double jeopardy claim appealable under 28 U. S. C. §1291.” Ante, at 322.

Because the essence of petitioner’s claim is that he should be relieved of any additional jeopardy as soon as he is entitled to the entry of a judgment of acquittal, there is no more reason to allow immediate appellate review in this case than in one in which the defendant tried to appeal from an order denying a motion for judgment of acquittal at the close of the prosecution’s case. As I recently noted in a similar context, the availability of premature review would give defendants “every incentive . . . not only to delay eventual punishment, but to obtain leverage in plea negotiations.” Justices of Boston Municipal Court v. Lydon, 466 U. S. 294, 334-335 (1984). Moreover, “[t]he speed and efficiency of the process would quickly be eroded if [interlocutory appeals] intervened between the first and second trials.” Ibid. “[U]ndue litigiousness and leaden-footed administration of justice [is] particularly damaging to the conduct of criminal cases.” DiBella v. United States, 369 U. S. 121, 124 (1962); see also Cobbledick v. United States, 309 U. S. 323, 325 (1940). Further, while it is true that the postponement of appellate review, see n. 3, supra, will cause some hardship because defendants will have to proceed through second trials before having their claims reviewed, as Judge Wilkey correctly observed, that hardship is far less grievous than the Court’s conclusion that such claims may never be reviewed. See ante, at 323, 326.

In sum, I would affirm the. judgment of the Court of Appeals. It correctly held that the order denying the motion for judgment of acquittal was not appealable. Because petitioner’s entire appeal constituted an attack on that order, it was properly dismissed. Accordingly, I respectfully dissent.

       The substance of petitioner’s claim that the Government’s evidence was insufficient to convict is that the evidence established that petitioner was involved in only one drug transaction, an event which alone, he argues, is insufficient to support a charge of conspiracy. Alternatively, petitioner argues that even if the evidence supports a finding that two drug sales took place, these sales were so isolated in time that no conspiracy could be inferred from their occurrence. Petitioner’s case depends, however, on excluding from consideration all statements made by his alleged co-conspirator implicating petitioner in the drug scheme. In light of our holding that petitioner has no valid double jeopardy claim, we have no occasion to address this argument.

       The text of the Double Jeopardy Clause of the Fifth Amendment reads: “[N]or shall any person be subject for the same offence to be twice put in jeopardy of life or limb.”

       Judge Scalia dissented, arguing that under our decision in Abney v. United States, 431 U. S. 651 (1977), the court had jurisdiction under 28 U. S. C. § 1291 to review petitioner’s double jeopardy claim. Judge Scalia would have held, however, that petitioner failed to raise a meritorious double jeopardy claim.

       Two other Circuits that have considered the question have reached the same conclusion as the Court of Appeals in this case. See United States v. Ellis, 646 F. 2d 132, 135 (CA4 1981); United States v. Becton, 632 F. 2d 1294, 1297 (CA5 1980), cert. denied, 454 U. S. 837 (1981).

       Of course, a trial court’s finding of insufficient evidence also is the equivalent of an acquittal, see Hudson v. Louisiana, 450 U. S. 40, 44-45, n. 5 (1981), but Burks was not necessary to establish that principle. See Burks v. United States, 437 U. S., at 11, citing Fong Foo v. United States, 369 U. S. 141 (1962); Kepner v. United States, 195 U. S. 100 (1904).

       It follows logically from our holding today that claims of double jeopardy such as petitioner’s are no longer “colorable” double jeopardy claims which may be appealed before final judgment. A colorable claim, of course, presupposes that there is some possible validity to a claim. Cf. Jones v. Barnes, 463 U. S. 745, 751-752 (1983); Florida Dept. of State v. Treasure Salvors, Inc., 458 U. S. 670, 694-695 (1982). Since no set of facts will support the assertion of a claim of double jeopardy like petitioner’s in the future, there is no possibility that a defendant’s double jeopardy rights will be violated by a new trial, and there is little need to interpose the delay of appellate review before a second trial can begin.

       In contrast to a defendant tried in a two-tier system like that at issue in Justices of Boston Municipal Court v. Lydon, 466 U. S. 294 (1984), a defendant in petitioner's circumstances will approach his trial on the assumption that it will be his only opportunity to influence the factfinder in his favor. That expectation will result in a maximum dedication of the defendant’s resources to the initial proceeding, will deprive him of the ability to take strategic advantage of his knowledge that he will have another factfinding opportunity, and will engender in him a significant degree of anxiety during the course of the first trial. Accordingly, in a traditional trial system, an event that ends the first proceeding, such as the declaration of a mistrial, has significance in terms of the policies underlying the Double Jeopardy Clause that it does not have in the two-tier context. Cf. Lydon, supra, at 320-321 (Brennan, J., concurring in part and concurring in judgment).

       By identifying the point at which a trial has terminated, I believe we also determine the point at which a defendant should be able to obtain review of a claim that a new trial is barred. See Justices of Boston Municipal Court v. Lydon, supra, at 320-321 (Brennan, J., concurring in part and concurring in judgment). Such a claim is plainly ripe when the first proceeding has ended and a new one is imminent. As the Court explains, a “colorable” double jeopardy claim “contest[s] the very power of the Government to bring a person to trial, and the right would be significantly impaired if review were deferred until after the trial.” Ante, at 320. See Abney v. United States, 431 U. S. 651, 662 (1977).
      Indeed, the Court’s conclusion in this regard makes its holding on the merits that much more bewildering. In the context of discussing the jurisdictional question, the Court states that “[pjetitioner’s first trial had ended and his second trial had been rescheduled before he asserted his double jeopardy claim to bar retrial.” Ante, at 322. Cf. post, at 335-337 (Stevens, J., dissenting). Yet, on the merits, it rules “that a trial court’s declaration of a mistrial following a hung jury is not an event that terminates the original jeopardy to which petitioner was subjected.” Ante, at 326. Apparently, the proceedings petitioner will experience constitute two trials for jurisdictional purposes but only one trial for double jeopardy purposes.

       The Government states the question presented as follows:
      “Whether a criminal defendant whose first trial resulted in a hung jury has a right to have the trial court’s determination of sufficiency of the evidence at that trial reviewed on appeal before the commencement of the second trial.” Brief for United States I.

       “Mr. Palmer: Yes, Your Honor. Just as a housekeeping matter, the double jeopardy claim, of course, hinged on the ruling of Judgment of Acquittal.
      “Having denied the Judgment of Acquittal a fortiori, I assume that you also denied the double jeopardy claim.
      “The Court: No question about it.
      “Mr. Palmer: So, just as a matter of record, can it also be indicated that, on September 11th, you also sought and did deny the double jeopardy claim also?
      “The Court: Yes.” App. 20a.

       As Judge Wilkey explained:
      “To come within the reach of the Cohen exception, the decision in question must meet three tests. First, it must fully dispose of the controverted issue; in no sense may it ‘leave the matter “open, unfinished or inconclusive.”’ Second, it must not be ‘simply a “step toward final disposition of the merits of the case” it must resolve ‘an issue completely collateral to the cause of action asserted.’ Finally, the decision must involve ‘an important right which would be “lost, probably irreparably,”’ if review awaited final judgment.
      “We have little difficulty in applying this test to the district court’s ruling on Richardson’s insufficiency claim. That ruling fails to meet the second and third requirements of Cohén. As two other circuits have noted, the legal sufficiency of the evidence presented is ‘a completely non-collateral issue.’ This is because the ultimate question in a criminal trial is whether the defendant is guilty of the crime charged. A defendant who chooses to go to trial is not guilty unless the prosecution is able to prove beyond a reasonable doubt that the defendant committed the crime. If the evidence presented at the first trial was legally insufficient, Richardson is automatically not guilty. Thus, the sufficiency of the evidence is anything but collateral to the merits of the upcoming trial (i. e., the question of defendant’s guilt, for this is determined by the sufficiency of the evidence); rather, it is a ‘step toward final disposition of the merits of the case [which will] be merged in the final judgment,’ the type of issue which is not covered by the collateral order exception.
      “Further, the right to appellate review of the issue will not necessarily be lost if we refuse review at this time. Three circuits have held that a criminal defendant can challenge the sufficiency of the evidence presented at his first trial (which resulted in a hung jury) when appealing his conviction at the second trial. Indeed, in the present case the government concedes that Richardson’s insufficiency claim will not be lost if it is not reviewed at this time, noting that ‘in the event he is convicted, [Richardson] can raise [the insufficiency claim] on appeal from that conviction.’ Therefore, because the insufficiency claim does not meet either the second or third Cohen requirements, we cannot review that claim until after a final judgment is entered.” 226 U. S. App. D. C. 342, 344, 702 F. 2d 1079, 1081 (1983) (footnotes omitted).

       226 U. S. App. D. C., at 346-347, and n. 30, 702 F. 2d, at 1083-1084, and n. 30.


author: Chief Justice Burger Justice Marshall, Justice Stevens,

text:
    HOBBY v. UNITED STATES
    No. 82-2140.
    Argued April 25, 1984
    Decided July 2, 1984

      Burger, C. J., delivered the opinion of the Court, in which White, Blackmun, Powell, Rehnquist, and O’Connor, JJ., joined. Marshall, J., filed a dissenting opinion, in which Brennan and Stevens, JJ., joined, post, p. 350. Stevens, J., filed a dissenting opinion, post, p. 362.

      Daniel H. Pollitt argued the cause and filed briefs for petitioner.

      Joshua I. Schwartz argued the cause for the United States. With him on the brief were Solicitor General Lee, Assistant Attorney General Trott, and Deputy Solicitor General Wallace

      Briefs of amici curiae urging reversal were filed for the American Civil Liberties Union et al. by William Van Alstyne, Sara Sun Beale, Burt Neubome, and Charles S. Sims; and for the NAACP Legal Defense and Educational Fund, Inc., by Jack Greenberg, James M. Nabrit III, and Charles Stephen Ralston.

   Chief Justice Burger

delivered the opinion of the Court.

We granted certiorari to resolve a conflict among the Circuits as to whether discrimination in the selection of federal grand jury foremen, resulting in the underrepresentation of Negroes and women in that position, requires reversal of the conviction of a white male defendant and dismissal of the indictment against him.

I

Petitioner, a white male, was indicted on one count of conspiring to defraud the United States of funds appropriated under the Comprehensive Employment and Training Act of 1973, 29 U. S. C. §801 et seq. (CETA), in violation of 18 U. S. C. §§371 and 665, and three counts of fraudulently obtaining and misapplying CETA grant funds, in violation of 18 U. S. C. § 665. Prior to trial in the United States District Court for the Eastern District of North Carolina, petitioner moved for dismissal of the indictment against him “due to improper selection of grand jurors.” App. 32. In particular, he alleged that the grand jury selection plan “exclude[d] citizens from service ... on account of race, color, economic status and occupation, in violation of . . . the Fifth and Sixth Amendments of the United States Constitution.” Id., at 33.

At an evidentiary hearing on the motion to dismiss, petitioner introduced the testimony of a statistical social science consultant regarding the characteristics of the persons selected as grand jury foremen or deputy foremen in the Eastern District of North Carolina between 1974 and 1981. The expert witness reported that none of the 15 grand juries empaneled during this 7-year period had had a Negro or female foreman. Of the 15 deputies appointed during this interval, so this expert testified, 3 had been Negroes and 6 had been women. From these data the expert witness concluded that Negroes and women were underrepresented among grand jury foremen and deputy foremen serving in the Eastern District of North Carolina. Rejecting petitioner’s claim of discrimination in the selection process, the District Court denied petitioner’s motion to dismiss the indictment, and petitioner was convicted after a jury trial.

The United States Court of Appeals for the Fourth Circuit affirmed. 702 F. 2d 466 (1983). Reasoning that the foreman of a federal grand jury performs a strictly ministerial function, the Court .of Appeals viewed the foreman’s impact upon the justice system and the rights of criminal defendants as minimal and incidental at most. In response to petitioner’s contention that appointment as foreman may enlarge an individual’s capacity to influence the other grand jurors, the Court of Appeals concluded that this likelihood was too vague and speculative to warrant dismissals of indictments and reversals of convictions.

The Court of Appeals recognized that in Rose v. Mitchell, 443 U. S. 545, 551-552, n. 4 (1979), this Court assumed without deciding that discrimination in the selection of the foreman of a state grand jury would require that a subsequent conviction be set aside. The Court of Appeals noted, however, that the function of the grand jury foreman in the federal system differs substantially from the role of the grand jury foreman in the states. The court concluded that the rights of defendants are fully protected by assuring that the composition of the federal grand jury as a whole is not the product of discriminatory selection.

We granted certiorari to resolve a conflict among the Circuits on this issue, 464 U. S. 1017 (1983), and we affirm.

II

A

It is well settled, of course, that purposeful discrimination against Negroes or women in the selection of federal grand jury foremen is forbidden by the Fifth Amendment to the Constitution. The question presented here, however, is the narrow one of the appropriate remedy for such a violation. It is only the narrow question of the remedy that we consider. No factual evidence was presented to the District Court on the issue of discrimination; instead, petitioner relied upon inferences to be drawn from the failure to select a woman or Negro as foreman of the grand jury for the seven years studied. As did the Court of Appeals, we proceed on the assumption that discrimination occurred in order to treat the constitutional issue presented by the motion to dismiss.

Invoking the Due Process Clause of the Fifth Amendment, petitioner argues that discrimination in the selection of grand jury foremen requires the reversal of his conviction and dismissal of the indictment against him. In Peters v. Kiff, 407 U. S. 493 (1972), the opinion announcing the judgment discussed the due process concerns implicated by racial discrimination in the composition of grand and petit juries as a whole. Emphasizing the defendant’s due process right to be fairly tried by a competent and impartial tribunal, see In re Murchison, 349 U. S. 133, 136 (1955), the opinion reasoned that unconstitutionally discriminatory jury selection procedures create the appearance of institutional bias, because they “cast doubt on the integrity of the whole judicial process.” 407 U. S., at 502. Moreover, the opinion perceived an important societal value in assuring diversity of representation on grand and petit juries:

“When any large and identifiable segment of the community is excluded from jury service, the effect is to remove from the jury room qualities of human nature and varieties of human experience, the range of which is unknown and perhaps unknowable. It is not necessary to assume that the excluded group will consistently vote as a class in order to conclude, as we do, that its exclusion deprives the jury of a perspective on human events that may have unsuspected importance in any case that may be presented.” Id., at 503-504 (footnote omitted).

Discrimination in the selection of grand jury foremen — as distinguished from discrimination in the selection of the grand jury itself — does not in any sense threaten the interests of the defendant protected by the Due Process Clause. Unlike the grand jury itself, the office of grand jury foreman is not a creature of the Constitution; instead, the post of foreman was originally instituted by statute for the convenience of the court. See 28 U. S. C. § 420 (1934 ed.); Rev. Stat. §809 (1878). Today, authority for the appointment of a grand jury foreman is found in Federal Rule of Criminal Procedure 6(c), which provides:

“The court shall appoint one of the jurors to be foreman and another to be deputy foreman. The foreman shall have power to administer oaths and affirmations and shall sign all indictments. He or another juror designated by him shall keep a record of the number of jurors concurring in the finding of every' indictment and shall file the record with the clerk of the court, but the record shall not be made public except on order of the court. During the absence of the foreman, the deputy foreman shall act as foreman.”

Rule 6(c) has somewhat ancient roots, cast as it is in what are now obsolete terms: foreman and deputy foreman. Centuries of usage, relating back to a day when women did not serve on juries, have embedded such terms in the law as in our daily vocabulary. However, it is not for us to amend the Rule outside the processes fixed by Congress for rulemaking; that is a task for the appropriate committees and the Judicial Conference of the United States.

As Rule 6(c) illustrates, the responsibilities of a federal grand jury foreman are essentially clerical in nature: administering oaths, maintaining records, and signing indictments. The secrecy imperative in grand jury proceedings demands that someone “mind the store,” just as a secretary or clerk would keep records of other sorts of proceedings. But the ministerial trappings of the post carry with them no special powers or duties that meaningfully affect the rights of persons that the grand jury charges with a crime, beyond those possessed by every member of that body. The foreman has no authority apart from that of the grand jury as a whole to act in a manner that determines or influences whether an individual is to be prosecuted. Even the foreman’s duty to sign the indictment is a formality, for the absence of the foreman’s signature is a mere technical irregularity that is not necessarily fatal to the indictment. Frisbie v. United States, 157 U. S. 160, 163-165 (1895).

As the Court of Appeals noted, the impact of a federal grand jury foreman upon the criminal justice system and the rights of persons charged with crime is “minimal and incidental at best.” 702 F. 2d, at 471. Given the ministerial nature of the position, discrimination in the selection of one person from among the members of a properly constituted grand jury can have little, if indeed any, appreciable effect upon the defendant’s due process right to fundamental fairness. Simply stated, the role of the foreman of a federal grand jury is not so significant to the administration of justice that discrimination in the appointment of that office impugns the fundamental fairness of the process itself so as to undermine the integrity of the indictment.

Nor does discrimination in the appointment of grand jury foremen impair the defendant’s due process interest in assuring that the grand jury includes persons with a range of experiences and perspectives. The due process concern that no “large and identifiable segment of the community [be] excluded from jury service,” Peters v. Kiff, 407 U. S., at 503, does not arise when the alleged discrimination pertains only to the selection of a foreman from among the members of a properly constituted federal grand jury. That the grand jury in this case was so properly constituted is not questioned. No one person can possibly represent all the “qualities of human nature and varieties of human experience,” ibid., that may be present in a given community. So long as the composition of the federal grand jury as a whole serves the representational due process values expressed in Peters, discrimination in the appointment of one member of the grand jury to serve as its foreman does not conflict with those interests.

The ministerial role of the office of federal grand jury foreman is not such a vital one that discrimination in the appointment of an individual to that post significantly invades the distinctive interests of the defendant protected by the Due Process Clause. Absent an infringement of the fundamental right to fairness that violates due process, there is no basis upon which to reverse petitioner’s conviction or dismiss the indictment.

B

Petitioner argues that the Court’s decision in Rose v. Mitchell, 443 U. S. 545 (1979), supports his position that discrimination in the selection of federal grand jury foremen warrants the reversal of his conviction and dismissal of the indictment against him. In Rose, two Negro defendants brought an equal protection challenge to the selection of grand jury foremen in Tennessee. The Court rejected the view that claims of grand jury discrimination should be considered harmless error when raised by a defendant who had been convicted by a properly constituted petit jury at an error-free trial on the merits, and adhered to the position that discrimination in the selection of the grand jury was a valid ground for setting aside a criminal conviction. Id., at 551-559. The Court then assumed “without deciding that discrimination with regard to the selection of only the foreman requires that a subsequent conviction be set aside, just as if the discrimination proved had tainted the selection of the entire grand jury venire.” Id., at 551-552, n. 4 (emphasis added). The Court concluded, however, that the defendants were not entitled to have their convictions set aside because they had failed to make out a prima facie case of discrimina^ tion in violation of the Equal Protection Clause with regard to the selection of grand jury foremen. Id., at 564-574.

Petitioner’s reliance upon Rose is misplaced. Rose involved a claim brought by two Negro defendants under the Equal Protection Clause. As members of the class allegedly excluded from service as grand jury foremen, the Rose defendants had suffered the injuries of stigmatization and prejudice associated with racial discrimination. The Equal Protection Clause has long been held to provide a mechanism for the vindication of such claims in the context of challenges to grand and petit juries. See, e. g., Castaneda v. Partida, 430 U. S. 482 (1977); Hernandez v. Texas, 347 U. S. 475 (1954); Strauder v. West Virginia, 100 U. S. 303 (1880). Petitioner, however, has alleged only that the exclusion of women and Negroes from the position of grand jury foreman violates his right to fundamental fairness under the Due Process Clause. As we have noted, discrimination in the selection of federal grand jury foremen cannot be said to have a significant impact upon the due process interests of criminal defendants. Thus, the nature of petitioner’s alleged injury and the constitutional basis of his claim distinguish his circumstances from those of the defendants in Rose.

Moreover, Rose must be read in light of the method used in Tennessee to select a grand jury and its foreman. Under that system, 12 members of the grand jury were selected at random by the jury commissioners from a list of qualified potential jurors. The foreman, however, was separately appointed by a judge from the general eligible population at large. The foreman then served as “ ‘the thirteenth member of each grand jury organized during his term of office, having equal power and authority in all matters coming before the grand jury with the other members thereof.’” Rose v. Mitchell, supra, at 548, n. 2 (quoting Tenn. Code Ann. §40-1506 (Supp. 1978)). The foreman selection process in Rose therefore determined not only who would serve as presiding officer, but also who would serve as the 13th voting member of the grand jury. The result of discrimination in foreman selection under the Tennessee system was that 1 of the 13 grand jurors had been selected as a voting member in an impermissible fashion. Under the federal system, by contrast, the foreman is chosen from among the members of the grand jury after they have been empaneled, see Fed. Rule Crim. Proc. 6(c); the federal foreman, unlike the foreman in Rose, cannot be viewed as the surrogate of the judge. So long as the grand jury itself is properly constituted, there is no risk that the appointment of any one of its members as foreman will distort the overall composition of the array or otherwise taint the operation of the judicial process.

Finally, the role of the Tennessee grand jury foreman differs substantially from that of the foreman in the federal system. The Tennessee foreman had the following duties:

“He or she is charged with the duty of assisting the district attorney in investigating crime, may order the issuance of subpoenas for witnesses before the grand jury, may administer oaths to grand jury witnesses, must endorse every bill returned by the grand jury, and must present any indictment to the court in the presence of the grand jury. . . . The absence of the foreman’s endorsement makes an indictment ‘fatally defective.’ Bird v. State, 103 Tenn. 343, 344, 52 S. W. 1076 (1899).” Rose v. Mitchell, supra, at 548, n. 2.

The investigative and administrative powers and responsibilities conferred upon the grand jury foreman in Tennessee, who possessed virtual veto power over the indictment process, stand in sharp contrast to the ministerial powers of the federal counterpart, who performs strictly clerical tasks and whose signature on an indictment is a mere formality. Frisbie v. United States, 157 U. S. 160 (1895); see supra, at 344-345.

Given the nature of the constitutional injury alleged in Rose, the peculiar manner in which the Tennessee grand jury selection operated, and the authority granted to the one who served as foreman, the Court assumed in Rose that discrimination with regard to the foreman’s selection would require the setting aside of a subsequent conviction, “just as if the discrimination proved had tainted the selection of the entire grand jury venire.” Rose v. Mitchell, 443 U. S., at 551-552, n. 4. No such assumption is appropriate here, however, in the very different context of a due process challenge by a white male to the selection of foremen of federal grand juries.

III

At oral argument, petitioner eschewed primary reliance upon any particular constitutional provision and instead invoked this Court’s supervisory power over the federal courts as a basis for the relief he seeks. Tr. of Oral Arg. 4-5, 7, 13-14. Only by setting aside his conviction and dismissing the indictment against him, petitioner urges, will this Court deter future purposeful exclusion of minorities and women from the post of federal grand jury foreman. It is true that this Court’s “supervision of the administration of criminal justice in the federal courts implies the duty of establishing and maintaining civilized standards of procedure and evidence.” McNabb v. United States, 318 U. S. 332, 340 (1943). See United States v. Hasting, 461 U. S. 499 (1983). However, we decline petitioner’s invitation to embark upon the course of vacating criminal convictions because of discrimination in the selection of foremen. Less Draconian measures will suffice to rectify the problem.

In no sense do we countenance a purposeful exclusion of minorities or women from appointment as foremen of federal grand juries. We are fully satisfied that the district judges charged with the appointment of grand jury foremen will see to it that no citizen is excluded from consideration for service in that position on account of race, color, religion, sex, national origin, or economic status. Cf. 28 U. S. C. § 1862.

IV

We hold that, assuming discrimination entered into the selection of federal grand jury foremen, such discrimination does not warrant the reversal of the conviction of, and dismissal of the indictment against, a white male bringing a claim under the Due Process Clause. Accordingly, the judgment of the United States Court of Appeals for the Fourth Circuit is

Affirmed.

Justice Marshall,

with whom Justice Brennan and Justice Stevens join, dissenting.

The majority assumes that a judge of the United States District Court for the Eastern District of North Carolina purposefully discriminated against Negroes and women in selecting the foreman of the grand jury that indicted petitioner. The majority recognizes that such discrimination is unconstitutional. The Court concludes, however, that dismissal of petitioner’s indictment is unwarranted because “the impact of a federal grand jury foreman upon the criminal justice system and the rights of persons charged with crime is ‘minimal and incidental at best,’” ante, at 345 (citation omitted), thereby rendering the relief petitioner requests incommensurate with the injury he received. I dissent because the Court errs in its assessment of (I) the dimensions of the injury to the criminal justice system caused by discrimination in the selection of grand jury foremen, (II) the dimensions of the injury to an individual defendant, and (III) the relative social costs that would likely be imposed by dismissing petitioner’s indictment compared to the costs that are likely to be exacted by the Court’s resolution of this case.

HH

An established principle of this Court’s jurisprudence is that the injury caused by race and sex discrimination in the formation of grand and petit juries is measured not only in terms of the actual prejudice caused to individual defendants but also in terms of the injury done to public confidence in the integrity of the judicial process. For example, in Peters v. Kiff, 407 U. S. 493 (1972), this Court reversed a Court of Appeals that had denied federal habeas corpus relief to a white defendant convicted in state court who had challenged his indictment on the ground that Negroes had been excluded from his grand jury. The State argued that, absent a showing of actual bias, the convicted defendant was not entitled to dismissal of his indictment. Three Justices, in the opinion announcing the judgment, rejected this argument on the ground that it took “too narrow a view of the kinds of harm that flow from discrimination” in grand jury selection. Id., at 498. They declared that dismissal of the indictment was required because “[illegal and unconstitutional jury selection procedures cast doubt on the integrity of the whole judicial process. They create the appearance of bias in the decision of individual cases, and they increase the risk of actual bias as well.” Id., at 502-503.

This theme was reaffirmed in Rose v. Mitchell, 443 U. S. 545 (1979). In Rose, we held that two state prisoners who sought federal habeas corpus relief had failed to present a prima facie case that the foreman of the grand jury that indicted them had been selected in a discriminatory manner. We strongly suggested, however, that proven discrimination would support the dismissal of an indictment. The Court again rebuffed the view that dismissal of an indictment was unwarranted. Instead, the Court reiterated its longstanding belief that dismissal was required regardless of the actual harm inflicted upon any particular defendant because “larger concerns,” id., at 555, were implicated:

“Discrimination on the basis of race, odious in all respects, is especially pernicious in the administration of justice. Selection of members of a grand jury because they are of one race and not another destroys the appearance of justice and thereby casts doubt on the integrity of the judicial process .... [S]uch discrimination ‘not only violates our Constitution and the laws enacted under it but is at war with our basic concepts of a democratic society and a representative government.’ . . . ‘The injury is not limited to the defendant — there is injury to the jury system, to the law as an institution, to the community at large, and to the democratic ideal reflected in the processes of our courts.’” Id., at 555-556 (citation omitted).

There is good reason why public confidence in the integrity of the judiciary is diminished whenever invidious prejudice seeps into its processes. This diminution of confidence largely stems from a recognition that the institutions of criminal justice serve purposes independent of accurate factfinding. These institutions also serve to exemplify, by the manner in which they operate, our fundamental notions of fairness and our central faith in democratic norms. They reflect what we demand of ourselves as a Nation committed to fairness and equality in the enforcement of the law. That is why discrimination “is especially pernicious in the administration of justice,” why its effects constitute an injury “to the law as an institution,” why its presence must be eradicated root and branch by the most effective means available.

The majority argues that the constitutional violation that assumably occurred does not warrant dismissal of petitioner’s indictment because the functions performed by a federal grand jury foreman are so incidental that discriminatory selection with respect to that post poses no substantial threat that petitioner was actually prejudiced or that the judicial process will be impugned in the mind of the public. The majority observes that, in contrast to Peters v. Kiff, supra, petitioner alleges only that Negroes and women were improperly excluded from the post of grand jury foreman and not that they were excluded from the grand jury as a whole. It posits that the observant public will realize that the tainted selection practice is simply too unimportant to justify an overall loss of confidence in the proceedings inasmiich as the foreman was chosen from an unobjectionable venire, has no more voting power than any other grand juror, and performs tasks that are merely ministerial.

The vice of this argument is that by focusing exclusively upon the role of the grand jury foreman it disregards the true dimensions of the violation. After all, the foreman was not the perpetrator of the constitutional violation. The persons assumed to have purposefully excluded Negroes and women from consideration for the foreman position were judges of the United States District Court. A judge is supposed to be the very embodiment of evenhanded justice. Society reveals its confidence that a judge will attend to his official duties without illicit regard for race or sex or other irrelevant characteristics by entrusting to him wide discretionary authority. The idea that a person occupying such a powerful and sensitive position would discriminate on the basis of race and sex in selecting grand jury foremen is extraordinarily disquieting and will be so to the public. For it is unlikely that a judge who engages in racist and sexist appointment practices will confine his prejudicial attitudes and actions to the area of foreman selections. More likely is that the presence of unconstitutional discrimination in that area is but a portion of a widespread region of tainted decisionmaking.

Furthermore, by allocating authority within the grand jury venire on the basis of race and sex, the judge who assumably discriminated against Negroes and women helped to perpetuate well-known and vicious stereotypes that our society has been struggling to erase. To denigrate the significance of the judge’s violation by characterizing its effect as “minimal and incidental” exposes the judiciary to justified charges of hypocrisy.

II

With respect to the issue whether petitioner himself was harmed by the violation, the majority concludes that discrimination in the selection of a grand jury foreman “can have little, if indeed any, appreciable effect upon the defendant’s due process right to fundamental fairness.” Ante, at 345. To justify this conclusion the Court first attempts to distinguish this case from Peters v. Kiff, 407 U. S. 493 (1972), where the defendant challenged the selection of the grand jury as a whole. In the Court’s view, “[discrimination in the selection of grand jury foremen — as distinguished from discrimination in the selection of the grand jury itself — does not in any sense threaten the interests of the defendant protected by the Due Process Clause.” Ante, at 344. To buttress this distinction, the majority observes that “[u]nlike the grand jury itself, the office of grand jury foreman is not a creature of the Constitution” but was “originally instituted by statute for the convenience of the court.” Ibid. This observation is useful, I suppose, as a revelation of antiquarian fact; however, it is utterly unconvincing as an explanation of why we must presume, as a matter of law, that discrimination in the selection of grand jury foremen can have no appreciable effect upon a defendant’s right to fair proceedings. Neither the United States district courts nor the United States courts of appeals are creatures of the Constitution; both were established pursuant to statute. I assume, however, that their legislative as opposed to constitutional origins does not attenuate their crucial importance in the federal judicial scheme.

Another factor the majority focuses upon as a way of distinguishing Peters v. Kiff, supra, from the case at hand is that in Peters the exclusion of Negroes from the grand jury venire had impaired the defendant’s interest in “assuring that the grand jury includes persons with a range of experiences and perspectives.” Ante, at 345. By contrast, in this case, the discrimination did not affect the composition- of the grand jury but rather its internal organization: the process by which a foreman was selected. The majority contends that the discrimination flowing from that process does not implicate the concerns raised by Peters because no one person can possibly represent the variety of backgrounds and perspectives found in a given community. Ante, at 346. This contention should be rejected because it mistakenly applies the principle for which Peters stands. Peters stands for the proposition that a defendant is entitled to have his case screened by a grand jury venire from which no segment of the community has been improperly excluded. What that principle means, in the context of this case, is that petitioner was entitled to a foreman selection process from which neither Negroes nor women were excluded merely on the basis of their race or their sex. While petitioner was not entitled to a Negro or woman foreman, he was entitled to at least the possibility of having a woman or Negro foreman. That possibility was nullified by the purposeful discrimination that presumably occurred in this case.

To establish that the influence exerted by a federal foreman’s position is “minimal and incidental” the Court looks principally to Rule 6(c) of the Federal Rules of Criminal Procedure. The trouble with the Court’s approach is that, by concentrating on the formal responsibilities of a foreman as delineated by Rule 6(c), it ignores powers and duties of the foreman that have developed “by custom, practice, and necessity.” United States v. Cross, 708 F. 2d 631, 637-638 (CA11 1983). A realistic understanding of the actual function performed by federal grand jury foremen must be supplemented by additional sources of evidence. One such source is the Handbook for Federal Grand Jurors (1980) (Handbook), prepared by the Judicial Conference Committee on the Operation of the Jury System. The Handbook “was recommended by the Judicial Conference for use in the United States District Courts to orient and prepare newly impaneled grand jurors.” Id., at 3. Its mission was to explain to grand jurors “clearly and simply” their obligations and duties. Ibid. The Handbook informs grand jurors that the court will appoint one of them to be “the foreman, or presiding officer, of the grand jury,” id., at 9; that if an emergency prevents attendance at a meeting, the affected grand juror “must promptly advise the grand jury foreperson, who has the authority to excuse” a grand juror’s absence, id., at 25; that the foreman administers the oath to witnesses before the grand jury, id., at 11; that the foreman initiates the juror’s questioning of witnesses, id., at 26; that the foreman determines whether an interpreter is required, id., at 11; that the foreman initiates deliberations, tallies the votes, and reports the grand jury’s conclusions to the court, id., at 13.

The description of the foreman’s role provided by the Handbook is more detailed than that offered by Rule 6(c) and more attuned to what is expected of the foreman in his day-to-day responsibility for presiding over the grand jury. This description portrays a post that is far more than merely clerical in nature; rather, it portrays a post that enables, indeed requires, a person to be first among equals within the grand jury room.

The Handbook’s description is corroborated by the testimony of District Court Judges who have testified under oath as to the qualities they look for in selecting a grand jury foreman. See United States v. Breland, 522 F. Supp. 468, 471-474 (ND Ga.); United States v. Manbeck, 514 F. Supp. 141, 150 (SC 1981); United States v. Northside Realty Associates, Inc., 510 F. Supp. 668, 683-684 (ND Ga. 1981); United States v. Holman, 510 F. Supp. 1175 (ND Fla. 1981); United States v. Jenison, 485 F. Supp. 655, 665-666 (SD Fla. 1979). Two patterns emerge from such testimony. First, district judges typically allocate considerable time and attention to the selection of grand jury foremen. If the foreman’s post is as insignificant as the majority contends, there would be little reason for district judges to be as concerned as they are with finding persons with the requisite qualities that make for a good foreman. Second, District Judges have testified that they typically select as foremen those who have “good management skills, strong occupational experience, the ability to preside, good educational background, and personal leadership qualities.” United States v. Cross, supra, at 636 (summarizing testimony adduced in United States v. Holman, supra, and United States v. Jenison, supra). Were the post merely clerical in nature, there would be little reason for judges to seek out persons with “personal leadership qualities.”

There is, moreover, another consideration that the majority fails to address: the peculiar difficulty of detecting the harm caused by racist and sexist practices in the administration of criminal justice. We recognized in Peters v. Kiff, that it is in the nature of discriminatory selection processes “that proof of actual harm, or lack of harm, is virtually impossible to adduce . . . .” 407 U. S., at 604. In Peters, where the issue arose in the context of deciding whether to allow a white person to challenge discriminatory practices excluding Negroes, the opinion announcing the judgment stated that the consequences of uncertainty should fall upon the prosecution. That opinion therefore concluded that “[i]n light of the great potential for harm latent in an unconstitutional jury-selection system, and the strong interest of the criminal defendant in avoiding that harm, any doubt should be resolved in favor of giving the opportunity for challenging the jury to too many defendants, rather than giving it to too few.” Ibid. Likewise, in light of the potential for harm latent in the unconstitutional selection of a grand jury foreman by a district court judge, and a defendant’s (and society’s) strong interest in avoiding that harm, any doubt should be resolved in favor of applying standards that are too stringent rather than too lax.

III

The consequence of the Court’s misperception of the nature and dimensions of the constitutional violation that is assumed to have occurred is a misunderstanding of what constitutes an appropriate remedy. The majority declines “to embark upon the course of vacating criminal convictions because of discrimination in the selection of [grand jury] foremen” because “[l]ess Draconian measures will suffice to rectify the problem.” Ante, at 349. Yet the Court never articulates what “less Draconian” measures it has in mind. It states that it is “fully satisfied that the district judges charged with the appointment of grand jury foremen will see to it that no citizen is excluded from consideration for service in that position on account of race, color, religion, sex, national origin, or economic status.” Ante, at 349-350. Such assurance, however, is completely nonsensical since, in this case, the Court must assume that a District Judge did exclude persons on the basis of race and sex.

Determining the appropriateness of reversing petitioner’s indictment requires applying the elementary, though oft-ignored, principle that every right must be vindicated by an effective remedy. For “‘[i]f constitutional rights are to be anything more than pious pronouncements, then some measurable consequence must be attached to their violation'” United States v. Calandra, 414 U. S. 338 (1974) (Brennan, J., dissenting, joined by Marshall, J.) (quoting Oaks, Studying the Exclusionary Rule in Search and Seizure, 37 U. Chi. L. Rev. 665, 756 (1970)). It would be intolerable if the constitutional prohibition against discrimination in the selection of grand jury foremen could be violated without practical consequence. The traditional remedy for unconstitutional government action is that which petitioner requests: nullification. Nullification is especially appropriate here where there is an absence of any other remedy that is even remotely effective.

The Court declares by fiat that dismissing petitioner’s indictment would constitute a “Draconian” measure. Missing from the Court’s opinion, however, is any indication that the Court considered factors essential to determining the proper scope of a remedy. The inchoate nature of the majority’s reasoning is especially regrettable since the Court engaged in a comprehensive explication of an appropriate balancing analysis in Rose v. Mitchell, 443 U. S., at 553-559.

In Rose, the Court reaffirmed its rejection of the view that the social costs of dismissing an indictment outweigh the costs imposed by a less effective remedy. It recognized that there are substantial costs imposed by dismissing an indictment following conviction — i. e., the costs attendant to retrying a defendant. It determined, however, that those costs were “outweighed by the strong policy the Court consistently has recognized of combating racial discrimination in the administration of justice.” Id., at 558. In making that determination, the Court took into account two considerations. First, the Court looked to the types of remedies courts resort to in rectifying and deterring analogous constitutional violations. The Court observed that dismissal of an indictment is in many ways less drastic than remedies resorted to in other contexts where constitutional rights have been violated. Id., at 557-558. In the case of an illegal search or a coerced confession, the violation often results in the suppression of evidence that is highly probative on the issue of guilt. Dismissing an indictment, however, does not render a defendant practically immune from subsequent re-indictment and reprosecution. In the subsequent reprosecution, the Government remains free to use the proof it initially introduced to obtain the conviction in the first instance. Second, the Court looked to the efficacy of alternative remedies. It recognized that there exists a criminal statute prohibiting discriminatory selection practices with respect to grand juries and that such illicit practices are also actionable in civil suits. The Court noted, however, that the inadequacies of these alternative remedies disabled them from assuming alone the burden of discouraging purposeful discrimination in the selection of grand jury foremen. A similar calculus would yield a similar result in this case.

IV

There is no doubt that this Court has the legitimate authority to order relief that would effectively deter federal judges from purposefully discriminating against Negroes and women in the selection of grand jury foremen. It has done so in similar contexts by ordering the dismissal of indictments against defendants convicted in both federal and state courts, and it has done so to vindicate both federal constitutional rights and its own supervisory authority over the proper administration of justice within the federal judiciary. The discriminatory conduct at issue resides within the four corners of the federal judicial process, an area uniquely amenable to this Court’s influence. And the constitutional principles and federal policies violated by this conduct are among the most definite, basic and deeply rooted in all of our jurisprudence. I therefore find the opinion of the Court both misguided and mysterious. If the Court is serious when it declares that it can “[i]n no sense . . . countenance” race and sex-based discrimination in the selection of federal grand jury foremen, ante, at 349, then it surely subverts its own declaration by both refusing to grant the long-established remedy petitioner requests and declining to offer even a glimpse of effective alternative remedies. I respectfully dissent.

Justice Stevens,

dissenting.

A rule that forbids discrimination in the selection of a grand jury must be justified primarily by the overriding interest in maintaining the integrity of the judicial process— both the actual fairness of that process and the symbolic values that it embodies. As I understand the Court’s prior cases, it is settled that the process that leads to a State’s deprivation of a person’s liberty is not “due process” if the selection of the grand jury that indicted the defendant was tainted by racial prejudice. That principle applies to the grand jury foreman, for he performs a function that has both practical and symbolic significance. See Rose v. Mitchell, 443 U. S. 545 (1979). Although I have expressed my doubts concerning the wisdom of applying this principle in certain situations, see id., at 593-594 (Stevens, J., dissenting in part), if we enforce the principle in state proceedings, surely we must insist on adherence to the same standard in the federal judicial system. Accordingly, I join JUSTICE Marshall’s dissenting opinion.

       Compare United States v. Aimone, 715 F. 2d 822 (CA3 1983) (discrimination in federal grand jury foreman selection does not raise constitutional concerns); 702 F. 2d 466 (CA4 1983) (case below) (same); United States v. Coletta, 682 F. 2d 820 (CA9 1982) (alleged discrimination in federal grand jury foreman selection insufficient to imply due process violation), cert. denied, 459 U. S. 1202 (1983), with United States v. Cross, 708 F. 2d 631 (CA11 1983) (position of federal grand jury foreman constitutionally significant); United States v. Perez-Hernandez, 672 F. 2d 1380 (CA11 1982) (discrimination in selection of federal grand jury foreman may require reversal of conviction; defendant failed to establish such discrimination). See also United States v. Cronn, 717 F. 2d 164 (CA5 1983) (white male defendant lacks standing to press equal protection challenge to discrimination in selection of federal grand jury foreman; constitutional significance of foreman not addressed).

        Peters held that a white male had standing to bring a racial-discrimination challenge to the system used to select his grand and petit juries. Justice Marshall, in an opinion joined by Justices Douglas and Stewart, reasoned that the defendant had standing to assert a denial of due process of law. 407 U. S., at 504. Justice White, in an opinion joined by Justices Brennan and Powell, concluded that standing would implement the strong statutory policy of 18 U. S. C. § 243, which provides that no qualified citizen “shall be disqualified for service as grand or petit juror in any court of the United States, or of any State on account of race, color, or previous condition of servitude. . . .” Id., at 505-507.

       Cf. Ballard v. United States, 329 U. S. 187 (1946): “[E]xclusion of women from jury panels may at times be highly prejudicial to the defendants. But reversible error does not depend on a showing of prejudice in an individual case. The evil lies in the admitted exclusion of an eligible class or group in the community in disregard of the prescribed standards of jury selection.” Id., at 195.

       “In a government of laws, existence of the government will be imper-illed if it fails to observe the laws scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example.” Olmstead v. United States, 277 U. S. 438, 485 (1928) (Brandeis, J., dissenting).

       See U. S. Const., Art. III, §1 (“The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish”).

         Even if I limited my analysis to the information provided by Rule 6(c), I would still maintain that the foreman’s job is sufficiently consequential that discrimination in the means of selecting someone to perform it could actually prejudice a defendant. The very designation by the judge that one person will serve as foreman importantly differentiates that person from the other members of the venire. See United States v. Cross, 708 F. 2d, at 637 (“A foreperson has only one vote on the grand jury, but the selection by the district judge might appear to the other grand jurors as a sign of judicial favor which could endow the foreperson with enhanced persuasive influence over his or her peers”).

       For example, in United States v. Breland, the court indicated that one District Judge had testified that, before selecting a foreman he “considered each [grand juror] questionnaire, making several tentative choices before reaching a final decision.” 522 F. Supp., at 473. The court indicated that another District Judge “reviewed every juror questionnaire . . . then observed prospective grand jurors in the courtroom as they were identified and answered the roll call. . . .” Ibid.

       For example, in United States v. Holman, a District Judge testified that the foreperson should possess sufficient intellectual independence to prevent being “easily led by the United States Attorney.” 510 F. Supp., at 1180. Similarly, in United States v. Jenison, a District Judge testified that he chose foremen on the basis of “work history” and “leadership ability.” 485 F. Supp., at 665.

       The Court also maintains that an indicium of the purported insignificance of the foreman’s position is that the absence of his signature on an indictment is deemed a mere technical irregularity that does not invalidate the indictment. Ante, at 344-345. This observation reveals nothing of significance about the functional importance of the foreman’s position. The refusal to invalidate an indictment merely because it lacks the signature of the foreman simply reflects a practical recognition that important government objectives, otherwise justified on the basis of applicable law, should not be stymied on the basis of meaningless formalities. See, e. g., United States v. Ventresca, 380 U. S. 102, 108 (1965) (rejecting challenge to adequacy of search warrant affidavit because such documents must be “tested and interpreted ... in a commonsense and realistic fashion”).

       See Marbury v. Madison, 1 Cranch 137, 163 (1803) (“The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right”).

       The Court noted that 18 U. S. C. § 243 makes it a federal crime to exclude citizens from service on grand and petit juries on account of race. It recognized, however, that prosecutions under §243 have been rare and that they “are not under the control of the class members and the courts.” 443 U. S., at 558. The Court further recognized that “[clivil actions, expensive to maintain and lengthy, have not often been used.” Ibid.

       In Ballard v. United States, 329 U. S. 187 (1946), the Court dismissed an indictment against a convicted defendant on the ground that women had been systematically excluded from his grand jury even though, at that time, Congress had not expressly prohibited disqualification of federal jurors on account of sex. Legislation now expressly provides that “[n]o citizen shall be excluded from service as a grand or petit juror ... on account of race, color, religion, sex, national origin, or economic status.” 28 U. S. C. § 1862.

       See, e. g., Strauder v. West Virginia, 100 U. S. 303 (1880); Smith v. Texas, 311 U. S. 128 (1940). See also 18 U. S. C. § 243; 28 U. S. C. § 1862.