sanabria argued november decided june title ed makes federal offense five persons conduct illegal gambling business violation law place business located petitioner along several others indicted violating single count charging defendants gambling business involved numbers betting betting horse races violation specified massachusetts statute government evidence trial district showed defendants engaged horse betting numbers betting close government case defense counsel argued government failed prove violation massachusetts statute statute prohibit numbers betting horse betting defendants rested trial judge granted motion exclude evidence numbers betting granted motion acquit petitioner lack evidence connection business case remaining defendants went jury convicted government appealed ed order excluding evidence judgment acquitting petitioner sought new trial portion indictment relating numbers betting appeals held jurisdiction appeal taking view although terms authorizes government appeal orders dismissing indictment one counts word counts refers discrete basis imposing criminal liability since numbers allegations discrete bases liability duplicitously joined single count district action constituted dismissal numbers charge acquittal insufficient evidence charge therefore authorized appeal dismissal numbers charge went hold double jeopardy clause fifth amendment bar retrial petitioner voluntarily terminated proceedings numbers portion count moving effect dismiss vacated judgment acquittal remanded new trial numbers charge held retrial numbers theory liability barred double jeopardy clause pp appeals erroneously characterized district action dismissal numbers theory one count charged district order language indictment stricken indictment amended judgment acquittal entered entire count found petitioner guilty violating without specifying respect one theory liability pp extent district found indictment description offense narrow warrant admission certain evidence ruling erroneous evidentiary ruling led acquittal insufficient evidence judgment acquittal however erroneous bars prosecution aspect count hence bars appellate review trial error pp even said district dismissed numbers allegation retrial theory subject petitioner second trial offense acquitted participation single gambling business single offense matter many state statutes enterprise violated regard single gambling business petitioner acquitted government charged single gambling business discrete violations state law business may committed severable order avoid double jeopardy clause bar retrials offense pp defendant acquitted matter egregiously erroneous legal rulings leading judgment acquittal might exception constitutional rule forbidding successive trials offense fong foo thus numbers evidence erroneously excluded judgment acquittal produced thereby final unreviewable lee jeffers distinguished pp marshall delivered opinion burger brennan stewart powell joined stevens joined parts iii white joined stevens filed concurring opinion post blackmun filed dissenting opinion rehnquist joined post francis dimento argued cause filed briefs petitioner frank easterbrook argued cause pro hac vice brief solicitor general mccree assistant attorney general civiletti sidney glazer justice marshall delivered opinion issue presented whether may appeal criminal case midtrial ruling resulting exclusion certain evidence subsequently entered judgment acquittal resolution issue depends application double jeopardy clause fifth amendment somewhat unusual facts case petitioner indicted along several others violating ed makes federal offense conduct finance manage supervise direct part illegal gambling business business defined one conducted five persons violation law place business located operates least days earns least one day indictment charged relevant part defendants gambling business involved accepting recording registering bets wagers parimutual sic number pool result trial contest skill speed endurance beast business violation laws commonwealth massachusetts wit chapter section government evidence trial showed defendants engaged primarily horse betting numbers betting close government case petitioner counsel represented defendants moved judgment acquittal clients joined counsel defendants argued inter alia government failed prove violation state statutory section alleged indictment since mass laws ch west construed state courts prohibit numbers betting applied betting games competition horse races government responded violation state law jurisdictional element federal statute every defendant must found violating state law district accepted government theory denied defendants motion stating defendant convicted must found joined illegal enterprise way petitioner counsel sought clarification whether numbers pool allegation still case indicated counsel presented authority proposition include numbers betting also expressed view however petitioner counsel correct exclude evidence bets numbers government demurred arguing exclusion numbers evidence necessarily follow acceptance petitioner theory taking lead petitioner counsel next moved strike limit evidence motion denied defendants rested trial judge announced reversing earlier ruling motion exclude evidence discovered massachusetts case holding numbers betting prohibited ch struck evidence numbers betting apparently believed action required indictment failure set forth proper section point counsel moved judgment acquittal petitioner alone arguing evidence connection activities government disagree evidence insufficient show petitioner involvement operation repeated earlier argument relating jurisdictional nature violation rejected contention stating offense established terms government charged violation petitioner connected operation mean horse operation concluded think done granted petitioner motion judgment acquittal entered order embodying ruling later day next day government moved reconsider ruling striking evidence concerning operation illegal numbers pool decision granting defendant thomas sanabria motion judgement sic acquittal prompted government arguments support reconsideration asked defense counsel raised objection indictment citation earlier prejudice resulted petitioner failure cite proper section counsel responded objection ripened end government case asked take judicial notice need allege actual prejudice denied motions reconsider indicated granted motion restore numbers evidence also vacated judgment acquittal case remaining defendants went jury theory gambling business engaged horse betting convicted government filed timely appeal decision order excluding evidence entering judgment acquittal denying motion reconsideration conceding review district ruling insufficient evidence petitioner involvement horse betting government sought new trial portion indictment relating numbers betting appeals first circuit held first jurisdiction appeal although jurisdictional statute ed terms authorizes government appeal orders dismissing indictment one counts word count interpret ed refer discrete basis imposition criminal liability viewing numbers allegations discrete bas es criminal liability duplicitously joined single count characterized district action dismissal numbers charge acquittal insufficient evidence charge concluded authorized appeal dismissal numbers charge double jeopardy clause bar future prosecution charge consistent analysis found petitioner voluntarily terminated proceedings numbers portion count moving effect dismiss since dismissal imported ruling petitioner criminal liability since petitioner motion attributable prosecutorial judicial overreaching applied rule permitting retrials prosecution terminated defendant request mistrial citing dinitz double jeopardy bar new trial went resolve merits appeal government favor held based intervening first circuit decision district erred dismissing numbers theory accordingly judgment acquittal vacated case remanded government may try defendant portion indictment charges violation based upon numbering sic activities granted certiorari limiting review related issues appealability double jeopardy reverse ii wilson found primary purpose double jeopardy clause prevent successive trials government appeals per se thus held indictment dismissed guilty verdict rendered double jeopardy clause bar appeal since verdict simply reinstated without new trial government successful new trial follow upon government appeal necessarily forbid however limited circumstances second trial offense constitutionally permissible appealability case therefore turns whether new trial ordered violate command fifth amendment person shall subject offence twice put jeopardy life limb deciding whether second trial permissible must immediately confront fact petitioner acquitted indictment verdict acquittal may reviewed without putting defendant twice jeopardy thereby violating constitution recently described fundamental rule history double jeopardy jurisprudence martin linen supply quoting ball fundamental nature rule manifested explicit extension situations acquittal based upon egregiously erroneous foundation fong foo see green fong foo appeals held district erred various rulings lacked power direct verdict acquittal government rested case accepted appeals holding district erred nevertheless found double jeopardy clause violated appeals set aside judgment acquittal directed petitioners tried offense thus defendant acquitted trial may retried offense even legal rulings underlying acquittal erroneous government take issue basic principles indeed concedes acquittal insufficient evidence refers theory liability unreviewable bars second trial charge disputed question however whether retrial numbers theory liability offense petitioner acquitted government contends accordance reasoning appeals numbers theory dismissed count judgment acquittal entered therefore petitioner acquitted numbers theory petitioner responds district dismiss anything rather struck evidence acquitted petitioner entire count assuming arguendo dismissal numbers theory urges retrial theory nevertheless barred second trial statutory offense first consider whether appeals correctly characterized district action dismissal numbers theory government view numbers theory dismissed case effectively government actually charged crime two counts district dismissed numbers count first difficulty argument encounters government fact charge offense two counts legal consequences ordinarily flow actually happened party might done vantage hindsight see central tablet mfg precise manner indictment drawn ignored important function indictment ensure case proceedings taken defendant similar offence record sho accuracy extent may plead former acquittal conviction cochran quoted approval russell hanger regard one count fact charged petitioner least formally acquitted persuaded correct characterize trial action dismissal discrete portion count form exalted substance determining double jeopardy consequences ruling terminating prosecution serfass jorn goldman neither appropriate entirely ignore form order entered trial see barber district issued two orders one excluding certain evidence entering judgment acquittal single count charged language indictment ordered stricken compare alberti indictment amended judgment acquittal entered entire count found petitioner guilty crime violating ed without specifying respect one theory liability defendant set bar tried offense unlawfully engaging illegal gambling business violation title code sections allowed defendant motion judgment acquittal close government evidence hereby ordered defendant thomas sanabria hereby acquitted offense charged ordered defendant thomas sanabria hereby discharged go without day must assume trial interpretation indictment erroneous see supra every erroneous interpretation indictment purposes deciding evidence admissible regarded dismissal district find count failed charge necessary element offense cf lee rather found indictment description offense narrow warrant admission certain evidence extent believe ruling properly characterized erroneous evidentiary ruling led acquittal insufficient evidence judgment acquittal however erroneous bars prosecution aspect count hence bars appellate review trial error martin linen supply fong foo green ball even government correct district dismissed numbers allegation view retrial theory subject petitioner second trial offense acquitted congress prosecution establishes defines offenses limitations imposed double jeopardy clause legislative power define offenses brown ohio congress defined statutory offense prescription allowable unit prosecution universal credit bell braverman nielsen prescription determines scope protection afforded prior conviction acquittal whether particular course conduct involves one distinct offenses statute depends congressional choice allowable unit prosecution defined participation single illegal gambling business congress assimilate state gambling laws per se federal penal code define discrete acts gambling independent federal offenses see see also iannelli government need prove defendant performed act gambling prohibited state law participation gambling business federal offense gambling business must violate state law government recognizes participation single gambling business single offense matter many state statutes enterprise violated brief government undisputed theory case single gambling business engaged horse betting numbers betting regard single business participation concededly single offense doubt petitioner truly acquitted recently defined acquittal resolution correct factual elements offense charged lee quoting martin linen supply supra petitioner found guilty failure proof key factual element offense charged connected illegal gambling business see supra government charged business engaged horse betting petitioner acquitted acquittal bar prosecution participating gambling business time period numbers theory trial disregarded government allegation numbers betting render acquittal theory less acquittal offense charged double jeopardy clause fragile guarantee limitations avoided simple expedient dividing single crime series temporal spatial units brown ohio hold today discrete bases liability defined legislature see recognizing single violation statute alleged either theory government nevertheless contends separate counts proper acquittal petitioner count bar another prosecution numbers count brief although may circumstances true petitioner acquitted insufficient proof element crime counts share connected single gambling business see supra finding fact stands absolute bar prosecution participation business government charged single gambling business discrete violations state law business may committed severable order avoid double jeopardy clause bar retrials offense indeed government argument discrete bases liability warranting reprosecution following final judgment acquittal one discrete basis quite similar unsuccessful argument presented braverman braverman convicted received consecutive sentences four separate counts conspiracy count alleging conspiracy violate separate substantive provision federal narcotics laws government conceded single conspiracy existed concedes single gambling business existed nonetheless urged separate punishments appropriate single conspiracy several discrete objects firmly rejected argument precise nature extent conspiracy must determined reference agreement embraces defines objects whether object single agreement commit one many crimes either case agreement constitutes conspiracy statute punishes one agreement taken several agreements hence several conspiracies envisages violation several statutes rather one double jeopardy clause less offended government seeks try petitioner twice single offense instead seeking punish twice braverman two offenses purposes barring consecutive sentences single trial necessarily purposes barring successive prosecutions brown ohio supra accordingly even numbers allegation dismissed conclude subsequent trial petitioner conducting illegal gambling business issue first trial subject second trial offense acquitted iii question remaining whether exceptions constitutional rule forbidding successive trials offense see supra apply short answer question exception permitting retrial defendant acquitted matter egregiously erroneous fong foo legal rulings leading judgment might government nevertheless argues relying principally lee jeffers petitioner waived double jeopardy rights moving dismiss numbers allegation objecting form allegation prior trial lee held retrial permissible district midtrial decision granting defendant motion dismiss indictment failure state offense functionally indistinguishable declaration mistrial defendant request mistrial analogy relied lee manifestly inapposite although jeopardy attached lee verdict rendered indeed petitioner conceded district termination first trial acquittal contrast trial proceeded verdict petitioner acquitted lee trial clearly contemplate reprosecution granted defendant motion neither petitioner motion trial rulings contemplated second trial since single offense involved petitioner went judgment offense trial terminates judgment acquittal double jeopardy principles governing permissibility retrial declaration mistrial lee bearing jeffers support government position defendant first tried convicted conspiring distribute narcotics violation eight members agreed subsequent trial conducting continuing criminal enterprise violation time period offense since violation lesser included offense violation prior first trial however jeffers specifically opposed government effort try indictments together part ground involved distinct offenses reasoning jeffers necessarily contemplated second trial four members found elect ed two offenses tried separately raising potential double jeopardy problem waived objection ground successive trials instant case presents quite different situation petitioner counsel never argued horse betting numbers distinct offenses fortiori argue contemplate separate trials theory multo fortiori elect undergo successive trials finally agree appeals case present hypothetical situation reserved judgment serfass defendant afforded opportunity obtain determination legal defense prior trial nevertheless knowingly allows placed jeopardy raising defense quoting solicitor general see petitioner legal defense single offense charged participating illegal gambling business violation unlike questions whether indictment offense statute unconstitutional conduct set forth indictment violates statute proof may presented support valid indictment sufficiency proof legal defenses required even capable resolved trial former instances ruling defendant favor completely precludes conviction least indictment even numbers language struck trial legal reason petitioner convicted indictment codefendants acquittal resulted insufficiency government proof trial establish petitioner connection gambling business trial judge erroneously understood charged government real quarrel judgment acquittal numbers evidence erroneously excluded judgment acquittal produced thereby final unreviewable neither ed double jeopardy clause permits government obtain relief adverse rulings result defense motions lead termination criminal trial defendant favor see wilson hold defendant waives double jeopardy protection whenever trial error favor midtrial motion leads acquittal undercut adversary assumption system criminal justice rests see jeffers stevens dissenting part concurring judgment part vitiate one fundamental rights established fifth amendment trial rulings led erroneous resolution defendant favor merits charge fong foo makes clear double jeopardy clause absolutely bars second trial circumstances appeals thus lacked jurisdiction government appeal accordingly judgment appeals reversed justice white joins parts iii opinion footnotes prohibition illegal gambling businesses whoever conducts finances manages supervises directs owns part illegal gambling business shall fined imprisoned five years used section illegal gambling business means gambling business violation law state political subdivision conducted ii involves five persons conduct finance manage supervise direct part business iii remains substantially continuous operation period excess thirty days gross revenue single day gambling includes limited bookmaking maintaining slot machines roulette wheels dice tables conducting lotteries policy bolita numbers games selling chances therein state means state district columbia commonwealth puerto rico territory possession indictment alleged full june continuing thereafter including november revere massachusetts within district massachusetts defendants unlawfully knowingly wilfully conduct finance manage supervise direct part illegal gambling business wit accepting recording registering bets wagers parimutual sic number pool result trial contest skill speed endurance beast said illegal gambling business violation laws commonwealth massachusetts wit chapter section place said gambling business conducted ii involved five persons conducted financed managed supervised directed owned part said business iii substantially continuous operation period excess thirty days gross revenue two thousand dollars single day violation title code sections district judge asked exclusion numbers evidence necessarily follow government responded defendants charged operating gambling business violation state law question horse race aspect violation state law aspects bets well violation state law merely jurisdictional element must satisfied prior initiation federal prosecution commonwealth boyle mass government time argue previously see supra numbers evidence relevant show aspects bets even used prove business violated state law instead urged numbers evidence admissible proof similar acts petitioner consistently maintained properly moved exclude numbers evidence irrelevant indictment characterization gambling business district properly granted evidentiary motion see tr oral arg district properly granted petitioner motion judgment acquittal excluding numbers evidence grounds insufficient evidence text judgment quoted infra support motions government argued failure cite mass laws ch west indictment technical defect causing prejudice defendants subject correction trial fed rule crim proc see infra numbers evidence restored case government argued vacating judgment acquittal proper since resulted solely erroneous exclusion evidence since new trial necessary view fact jury discharged trial explained reasoning follows motion granted think probably motion reconsider acquittal sanabria allowed new decisions wilson jenkins serfass decided last term seem say judgment acquittal judgment dismissal entered legal grounds opposed containing importing finding fact reversal decision require new trial may reversed fong foo jury discharged necessary draw new jury start new trial jenkins specifically distinguished fong foo group another provision authorizes government appeal orders suppressing excluding evidence made defendant put jeopardy verdict finding indictment government contend ruling excluding numbers evidence appealable provision plain terms moreover second paragraph authorize appeal since ruling excluding evidence occurred defendant put jeopardy verdict cf morrison morrison cert denied morrison held failure cite mass laws ch west similarly worded indictment harmless error based morrison concluded indictment sufficient give notice numbers activity basis upon government sought establish criminal liability petition certiorari filed one day time time requirement rule jurisdictional schacht petitioner filed motion supported affidavits seeking waiver requirement grant petitioner motion petition certiorari presented four questions review first three relating whether government appeal authorized statute barred double jeopardy clause fourth question sought review appeals ruling indictment gave sufficient notice government intent rely evidence numbers betting order limited grant certiorari first three questions accordingly must assume district erred ruling indictment encompass numbers allegation failure cite mass laws ch west jenkins contrast held appeal order dismissing indictment jeopardy attached verdict barred successful appeal require proceedings devoted resolution factual issues going elements offense charged see lee new trial permitted defendant successfully appeals conviction ball mistrial declared manifest necessity wade hunter defendant requests mistrial absence prosecutorial judicial overreaching dinitz indictment dismissed defendant request circumstances functionally equivalent mistrial lee supra see also jeffers several occasions observed jurisdictional statute authorizing government appeals ed intended remove statutory barriers appeals orders terminating prosecutions martin linen supply quoting wilson therefore turn immediately constitutional issues without constitutional significance entered judgment acquittal rather directing jury bring verdict acquittal giving erroneous instructions resulted acquittal martin linen supply supra sisson difficulty allowing defendant rights turn government might done illustrated considering government alleged theory liability separate count indictment subject objection grounds multiplicity charging single offense separate counts see infra government might forced elect count proceed petitioner universal credit probably chosen proceed numbers theory evidence apparently stronger event however petitioner acquitted count instant problem arisen appeals erred apparent view government drawn indictment two counts single count duplicitous single gambling business alleged hence single offense see infra single offense normally charged one count rather several even different means committing offense alleged see fed rule crim proc advisory committee notes fed rule crim proc ed supra appeals might warranted dismissing appeal failure notice specify arguably appealable ruling rendered believed critical ruling district indictment failed charge violation numbers theory critical ruling concluded dismissal set forth notice appeal since government authorized appeal adverse rulings criminal cases especially important specify precisely claims appealable ruling appeals however must concluded notice sufficient bring review legal ruling preceding order excluding evidence mistake designating judgment appealed always fatal long intent appeal specific ruling fairly inferred probing notice party misled prejudiced daily mirror new york news per curiam jones nelson government designation issue sic appeal apparently filed notice set forth trial judge erred ruling chapter section encompass illegal numbers operation result erred granting motion strike motion judgment acquittal district interpretation indictment encompassing charge gambling business engaged numbers betting violation state law require numbers evidence excluded even indictment charged defendants conducted illegal gambling business engaged activities violation state law evidence relating numbers betting admissible absent actual surprise prejudice show defendants connection part illegal gambling business government repeatedly argued district violation state law jurisdictional element need proved respect business district erroneous assumption numbers evidence excluded may resulted part government failure repeat full earlier argument see supra judge ruled encompass numbers betting see supra see supra numbers evidence excluded judgment acquittal entered even adhered ruling scope indictment case gone jury presumably instructions jurors find gambling business engaged horse betting defendants conducted part gambling business agree appeals see supra statutory barrier appeal order dismissing portion count one express purpose ed permit appeals orders dismissing indictments one counts count usual organizational subunit indictment therefore appear congress intended authorize appeals order dismissing indictment whole part congress hardly meant appealability depend initial decision prosecutor charge one count also charged two decision frequently fortuitous purposes interests served rule import empty formalism statute expressly designed eliminate echnical distinctions pleadings limitations appeals conf accord note appeals considered question reached similar result alberti see note twice jeopardy yale single violation single statute issue analyze case evidence test frequently used determine whether single transaction may give rise separate prosecutions convictions punishments separate statutes see gavieres blockburger gore iannelli see also brown ohio jones cert denied case controlled decisions permitting prosecution statutes defining criminal offense discrete act prior conviction acquittal distinguishable discrete act separate violation statute see ebeling morgan burton cf ladner bell hawes numerous cases recognized ed proscribes degree participation illegal gambling business except participation mere bettor see dimuro cert denied leon brick smaldone cert denied hunter cert denied ceraso becker vacated grounds similarly government need prove defendant participated illegal gambling business days grossed single day business existed days met earnings criteria graham per curiam marrifield schaefer cert denied sub nom del pietro smaldone supra see dimario cert denied finding petitioner connected gambling business necessarily meant found conduct finance manage supervise direct see see wright federal practice procedure see also sabella friendly hanf cert denied see also jackson government may double jeopardy clause fragment fact single crime components government concedes required bring theories liability single trial single punishment imposed upon conviction one theory brief true factual determination made petitioner engaged numbers betting thus bar prosecution petitioner different offense liability depend proof fact cf ashe swenson single gambling business theoretically may violate many laws state prohibiting gambling specifies six means defendant may illegally participate business conducting financing managing supervising directing owning accept government theory varied one time charge separate count defendant reprosecuted following acquittals others two different gambling businesses alleged proved separate convictions punishments proper see american tobacco holding braverman inapplicable two distinct conspiracies alleged always easy ascertain whether one gambling businesses proved see dimuro bobo difficulties presented sides agree single gambling business existed tanner cert denied see mayes cert denied young cohen see also short powe weiss nd holding jeffers subjected second trial four justices view total punishment imposed jeffers excess authorized single violation relied part fact jeffers argued district two statutes involved distinct offenses never affirmatively argued difference two statutes great authorize separate punishments joined voting vacate excess punishment four justices believed jeffers constitutionally subjected another trial justice white believed jeffers subjected second trial separate punishments argument made numbers allegations highlighted fact petitioner counsel argue behalf another defendant evidence relating defendant betting dog races excluded theory government case horse numbers business dog betting stands separate business government must prove one business like multiple conspiracy record justice stevens concurring although join text opinion agree dictum true statutory barrier appeal order dismissing portion count ante equally true statutory authority appeal necessarily follows least faithful concept federal courts jurisdiction conferred congress appeals jurisdiction appeal criminal appeals act ed authorizes appeal order district dismissing indictment information one counts except appeal shall lie double jeopardy clause constitution prohibits prosecution emphasis added plain terms statute encompass present case putting one side question whether acquittal may properly regarded order dismissing indictment within meaning statute see martin linen supply stevens concurring statutory grant appellate jurisdiction still unequivocally limited review dismissal one counts statute refer subunit indictment portion count ante counts unambiguous term art prior amendment rule statutory interpretation criminal appeals act strictly construed government right appeal carroll present pattern interpretation exemplified martin linen supra simply abandon approach reverses direction entirely reads statute whatever manner favor government appeal course true legislative history act indicates congress intended liberally construed expression legislative intent give us license ignore words statute fact even suggest language one counts ambiguous instead argues words given proper meaning act intended eliminate echnical distinctions pleadings ante argument hollow ring light prior assertion precise manner indictment drawn ignored important function indictment ensure case proceedings taken defendant similar offense record show accuracy extent may plead former acquittal conviction ante furthermore judgment rule government may appeal dismissal portion count provided portion establishes discrete basis liability fosters rather eliminates technical distinctions encourages exactly sort nearsighted parsing indictments amendment intended discourage therefore join portion decision criminal appeals act permits appeal portion count clearly reason well reasons stated text opinion appeals decision must reversed justice blackmun justice rehnquist joins dissenting case course odd unusual one factually procedurally case afford little guidance precedent continuing struggle create order understanding confusion lengthening list decisions double jeopardy clause thought however principles enunciated late last term lee deem difficult case government one application facts share distinction lee ante agree lee manifestly inapposite lee misdescription trial nature order lee maneuvers result surrender right receive verdict jury drawn appears petitioner succeeded indictment read one way trial another way situation required affirm judgment appeals