(concurring) :
Judge Hufstedler and I concur in the result reached in Judge Madden’s opinion, but in concluding that Howard may be retried, we take a slightly different approach. We cannot see that any serious problem concerning the issue of double jeopardy is presented. Nor can we see that the two Pennsylvania civil cases cited in the principal opinion are significantly germane. When a judgment of conviction is reversed for insufficiency of the evidence, the determination of whether the indictment should be dismissed or there should be a retrial rests within the discretion of the court. See, e. g., Bryan v. United States, 338 U.S. 552, 70 S.Ct. 317, 94 L.Ed. 335 (1950); C. Wright, Federal Practice and Procedure, Criminal § 470. When an appellate court exercises this discretion, it must look to the record, undertaking to ascertain if the prosecution had the opportunity fully to develop its case, or, in fact, did so. If it did, or if it appears that it was responsible for its failure adequately so to do, then it is not ordinarily fair that the successful appellant should be required to undergo another trial. See, e. g., Davis v. United States, 382 F.2d 221 (9th Cir. 1967); Gonzales v. United States, 374 F.2d 112 (9th Cir. 1967); Whaley v. United States, 362 F.2d 938 (9th Cir. 1966).
Here, it can hardly be said that the prosecution’s case was fully developed. In the light of Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969), the district judge quite understandably resolved the question whether the prosecution was entitled to the application of the statutory presumption in favor of the accused. Subsequently, the Supreme Court, drawing a distinction between the presumption relating to marijuana, invalidated in Leary, and the presumption relating to heroin, held that the application of the latter is appropriate. Turner v. United States, 396 U.S. 398, 90 S.Ct. 642, 24 L.Ed.2d 610 (1970). Thus, when the district judge disposed of the motion for judgment of acquittal, the prosecution, through no fault of its own, had been deprived of an advantage to which it was entitled in the court’s consideration of the motion. In these circumstances, its case has not been fully developed, and it cannot be faulted for the deficiency of proof which requires reversal.