William R. Forman v. United States

On September 15, 1958 we handed down our decision herein reversing the judgment with directions to enter judgment for the appellant. 9 Cir., 259 F.2d 128 . On October 27, 1958, upon petition for rehearing filed by appellee, we modified our decision so as to provide that the judgment was reversed and the cause remanded for a new trial. 9 Cir., 261 F.2d 181 . This action was followed by a petition for further rehearing filed on behalf of the appellant in which the latter asserts that this court is without power to order a new trial.

Appellant’s principal reliance is upon the case of Sapir v. United States, 348 U.S. 373 , 75 S.Ct. 422, 423 , 99 L.Ed. 426 , where the court summarily reversed the action of a court of appeals which modified an earlier opinion ordering an indictment dismissed so as to order a new trial.

In a concurring opinion Mr. Justice Douglas explained his view of that case as follows:

“The granting of a new trial after a judgment of acquittal for lack of evidence violates the command of the Fifth Amendment that no person shall ‘be subject for the same offence to be twice put in jeopardy of life or limb.’

“The correct rule was stated in Kepner v. United States,…