In the Matter of United States of America

ALDRICH, Circuit Judge

(concurring).

If I agreed with the court that one could not be sure of the reason why the district court ordered the acquittal I would have to disagree with its conclusion on the issue of double jeopardy. Since the subject is of some general importance, I will state my reasons.

I cannot think that a court is “without power,” that is, “without jurisdiction,”1 to order an acquittal in the midst of the government’s case on the ground that evidence already introduced is so fatally defective that no jury could be allowed to convict. The court assumes, arguendo, that it may sometimes be appropriate for a district court to direct an acquittal prior to the closing of the government’s case because of some evidentiary defect, but says it is unnecessary to decide. I do not think one can leave this matter hanging, but, rather, I believe its resolution to be all-important.

Not unnaturally, in view of the fact that the government has no general right of appeal, there is a paucity of authority with respect to the right of the court to acquit for evidentiary defects at any preliminary stage. In United States v. Dietrich, C.C.D.Neb.1904, 126 F. 676, at pages 677-678, Circuit Judge (afterwards Mr. Justice) Van Devanter said,

“Where, by the opening statement for the prosecution in a criminal trial, and after full opportunity for the correction of any ambiguity, error, or omission in the statement, a fact is clearly and deliberately admitted which must necessarily prevent a conviction and require an acquittal, the court may, upon its motion or that of counsel, close the case by directing a verdict for the accused. The court has the same power to act upon such an admission that it would have to act upon the evidence if produced. It would be a waste of time to listen to evidence of other matters when at the outset a fact is clearly and deliberately admitted which must defeat the prosecution in the end.”

I see no reason to say the court there erred in applying this well-recognized civil principle to a criminal proceeding. See McGuire v. United States, 8 Cir., 1945, 152 F.2d 577, 580. In like manner, in United States v. Maryland Cooperative Milk Producers, Inc., D.C.D.C.1956, 145 F.Supp. 151, an acquittal was ordered when facts were stipulated during the course of the government’s case which the court believed precluded any possibility of criminal liability. See also United *566States v. Weissman, 1924, 266 U.S. 377, 379, 45 S.Ct. 135, 69 L.Ed. 334.

In the absence of any contrary authority, it seems inherently reasonable to conclude that at whatever stage a fatal deficiency in the government’s evidence irrevocably appears, the court is empowered to acquit.2 Yet it must follow that if the court can make such a decision in medias res when its opinion of the damaging effect of particular facts is correct, it can equally do so when its interpretation is incorrect. If a court truly lacked jurisdiction, that would be one thing, but given power to decide, there must be power to decide erroneously. Therefore the question must be, was the nature of the ruling that the court made here so different that it must be said that the court was entirely without the power to make it.

There can be no doubt that even if a court found no conceded fact, as in the Maryland Cooperative case, fatal to the government, but nevertheless was of the opinion that the government’s evidence was so unrealiable and vacillatin3 as to be utterly unworthy of belief, it could order an acquittal at the close of the government’s case. The government could not appeal, no matter how erroneous the court’s determination. I cannot think that a court is entirely without power to reach the same conclusion before the last witness has testified. It is not always necessary to eat the whole of an egg to know it is rotten. The fact that the court is obliged to put the defendant to the bar, Ex parte United States, 1932, 287 U.S. 241, 53 S.Ct. 129, 77 L.Ed. 283, seems a far cry from saying that it cannot, in a bona fide attempt to weigh evidence introduced, conclude that what it holds to be a vital part thereof is so irretrievably bad that no jury could properly convict.4

Suppose here that instead of ordering an acquittal forthwith the court had stated that under the circumstances then disclosed all of the remaining evidence offered by the government must be excluded as irrelevant. Manifestly, the power to exclude evidence as irrelevant exists at all times. The government, perforce, would then have rested, and the court’s power to acquit would have become absolute. In what way was the court’s ruling (if the unreliability of the evidence was its reason for acquittal rather than government counsel’s alleged misconduct) other than that evidence already introduced so fatally infected the case that all further evidence was irrelevant in the sense that it could not cure the defect. To say that this was done without sufficient consideration is not to say that it was done without power. I believe the court has been misled by the relative magnitude of the district court’s error into confusing a difference in degree with a difference in kind.

However, I think that a different question is raised by the other possible reason for the acquittal, the conduct of the Assistant U. S. Attorney in speaking to his witness during the recess. Here the court’s assumption, arguendo, (note 5) is that “a judgment of acquittal might be warranted in the event that deliberate misconduct of Government counsel is so outrageous as not only to render the trial *567in progress unfair but also to make a fair trial in the future impossible.” I find it difficult to imagine circumstances warranting such an assumption. Cf. Caldwell v. United States, 1953, 92 U.S.App.D.C. 355, 205 F.2d 879, 881, note 11, certiorari denied, 349 U.S. 930, 75 S.Ct. 773, 99 L.Ed. 1260. But in all events I agree with the court that it is totally inapplicable.

It must be conceded that it was within the power of the district court to determine, however, erroneously, that the conduct of counsel was improper. But I do not think it follows automatically that the court had power to acquit for that reason. “A criminal prosecution is more than a game in which the government may be checkmated and the game lost merely because its officers have not played according to rule.” McGuire v. United States, 1927, 273 U.S. 95, 99, 47 S.Ct. 259, 260, 71 L.Ed. 556. When a court acquits in the middle of the government’s case because of what it believes to be an incurable defect in the evidence, it has made a judgment on the government’s case as a whole. A ruling of misconduct, however, is only a judgment as to the procedure in the particular trial. What corrective steps the court should take after its determination of a procedural error is a separate question. To make the same assumption that the court makes in its opinion, that “deliberate,” “outrageous” misconduct which would project its unfairness into a future trial would warrant an acquittal forthwith, does not advance the matter, because that is far from our case. The district court made it abundantly clear that the error, as it considered it, committed by the Assistant U. S. Attorney was based upon ignorance of the court’s rule,5 and was anything but deliberate. Nor was any question of prejudice to the defendants possibly involved. The only testimony which the witness had changed as a result of conferring with counsel was the date of a particular conference. The date was a preliminary matter. Nothing about the conference had been admitted in evidence. The present effect of this new testimony upon the trial was nil. Its future effect was entirely in the control of the court, who could exclude any future evidence relating to this as yet undisclosed conference. This was not a question of degree. Prejudice to the defendants was entirely nonexistent.

Under these circumstances I do not think the court had any more power to order an acquittal than it would have had on the basis of some rule of thumb that more than three government questions, asked in good faith, but regarded by the court as irrelevant, had unduly delayed the trial.

While courts can do, and must be permitted to do, unwise and even foolish things, I think there must be some limit to naked, arbitrary power. As against a defendant’s right to be free from double jeopardy, there is the interest of the public in the prosecution and conviction of criminals. See, e. g., Green v. United States, 1957, 335 U.S. 184, 216-219, 78 S.Ct. 221, 2 L.Ed. 199. (Frankfurter, J„ dissenting). In some instances this has been permitted to override what, strictly, is a second jeopardy, or at least an extended jeopardy. Cf. Wade v. Hunter, 1949, 336 U.S. 684, 688-690, 69 S.Ct. 834, 93 L.Ed. 974; cases collected in United States v. Gori, 2 Cir., 1960, 282 F.2d 43, 48 (dissenting opinion), certiorari granted 81 S.Ct. 282. Whatever may be the correct philosophy of judicial power, I am unwilling to think that such a totally arbitrary act in the course of trial with no semblance of justification behind it;6 should deprive the government of its *568day in court. This may be an exceptional ruling, but this is an exceptional case.

Since I think different consequences flow from the two suggested grounds of the district court’s acquittal, it is essential to determine, if possible, which one was the actual basis of its action. With all respect, I do not share the court’s expressed uncertainty. As soon as it appeared why the witness had changed his testimony the district'court excused the jury and asked.the Assistant U. S. Attorney, “As a matter of personal privilege do you want to make any statement?” The court stated that in talking to his witness counsel had violated an “elementary rule,” and that it was “interested in whether this is a situation in which I must respond to a motion.” The court then described counsel’s conduct as “a violation of civil liberties.” Subsequently the court called the jury, stated that counsel were acting “subjectively in good faith [but that] the standards of a criminal prosecution in the United States require a constant awareness of the rights and liberties guaranteed by the United States Constitution.” It is true that thereafter the court mentioned the government witnesses’ “lamentable lack of awareness or lack of capacity in connection with their testimonial obligations,” and discussed the case generally. But it returned at some length to counsel’s conference with the witness, discussed extorted confessions, unlawful search and seizure, and “the duty of a court to see that every man gets a fair trial,” and concluded, “Bearing in mind these principles, and responding to the motions for acquittal made by counsel * * *, I direct you at this stage to return the verdicts of acquittal * *

It may be that the district court would not have conceived of this “elementary rule” if it had not already been annoyed with the testimonial deficiencies of the witnesses, but I have no reluctance in concluding that the reason it granted the motions for acquittal was the same one that caused it to invite them — namely, counsel’s violation of the “rule.” Accordingly, I concur in the judgment of. the court.

. The court apparently uses “power” and “jurisdiction” interchangeably. Certainly there is no question here about the district court’s jurisdiction over the case and over the defendants. Accordingly, I will hereafter use the term “power.”

. There is some suggestion in the court’s opinion that Fed.Rule of Crim.Procedure 29(a), 18 U.S.C., permitting the court to acquit at the close of the government’s evidence and allowing the defendant to move at that time without resting, impliedly indicates that the court may not acquit at any earlier stage. The rule contains, however, no positive prohibition to that effect. I believe the rule merely recognizes a common practice, and encourages it by not restricting the right of the defendant to move. See 5 Moore, Federal Practice ¶ 50.01 [2] (2d ed. 1951).

. The district court here (wrongfully, I agree) asserted that the witnesses continually and fundamentally contradicted themselves.

. Even accepting in full the government’s suggestion that it is entitled to a trial hy jury, such trial traditionally includes the right of the court to conclude that the evidence does not warrant submission. See Patton v. United States, 1929, 281 U.S. 276, 288, 50 S.Ct. 253, 74 L.Ed. 854.

. An understandable ignorance, since twice before during the trial the court had expressly invited a government witness to confer with counsel during recess about his testimony, and in one instance to “rehearse it with counsel.”

. Unless one wanted to say it was to teach government counsel a lesson for not knowing the rules — which is scarcely a judicial function. It would be doubly inappropriate here in view of the court’s prior instructions. See n. 5, supra.