UNITED STATES SUPREME COURT DECISIONS ON-LINE

Petitioner was indicted on three counts of federal narcotics violations. At his trial, the jury acquitted him on one count but was unable to agree on the others. The District Court declared a mistrial as to the remaining counts and scheduled a retrial. Petitioner then moved to bar a retrial, claiming that it would violate the Double Jeopardy Clause of the Fifth Amendment. The District Court denied the motion, and the Court of Appeals dismissed petitioner's appeal from that ruling for lack of jurisdiction under 28 U.S.C. § 1291.

Held:

1. Petitioner raised a colorable double jeopardy claim appealable under 28 U.S.C. § 1291. While consideration of this claim would require the Court of Appeals to canvas the sufficiency of the evidence at the first trial, this fact alone does not prevent the District Court's order denying the claim from being appealable. Pp. 468 U. S. 320-322.

2. On the merits, however, regardless of the sufficiency of the evidence at his first trial, petitioner has no valid double jeopardy claim. The protection of the Double Jeopardy Clause, by its terms, applies only if there has been some event, such as an acquittal, that terminates the original jeopardy. Neither the failure of the jury to reach a verdict nor a trial court's declaration of a mistrial following a hung jury is an event that terminates the original jeopardy. Like the defendant, the Government is entitled to resolution of the case by the jury. Pp. 468 U. S. 322-326.

226 U.S.App.D.C. 342, 702 F.2d 1079, reversed.

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. 468 U. S. 326. STEVENS, J., filed a dissenting opinion, post, p. 468 U. S. 332. clubjuris

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