# Fong Foo v. United States/Dissent Clark

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United States Supreme Court
369 U.S. 141
Fong Foo v. United States
Argued: Jan. 16, 1962. --- Decided: March 19, 1962
Mr. Justice CLARK, dissenting.
The Court speaks with such expanse that I am obliged to dissent. It says that because 'a final judgment of acquittal' was entered pursuant to a directed verdict the propriety of such 'acquittal' cannot be reviewed even though the Government had not concluded its main case at the time the verdict was directed. The District Court under the circumstances here clearly had no power to direct a verdict of acquittal or to enter a judgment thereon. In my view when a trial court has no power to direct such a verdict, the judgment based thereon is a nullity. The word 'acquittal' in this context is no magic open sesame freeing in this case two persons and absolving a corporation from serious grand jury charges of fraud upon the Government.
On the record before us it matters not whether the so-called acquittal was pursuant to the trial court's conclusion that the Government's witnesses up to that point lacked credibility or was based on the alleged misconduct of the prosecution.
On the first point, the Government had only examined three of its witnesses and was in the process of examining a fourth when the acquittal was entered. The first and third witnesses were merely preliminary, offered to identify documents and explain the functions performed by the individual defendants for the corporate defendant. The second was offered to give the jury an explanation of radiosondes, devices for gathering whether data, which petitioners were furnishing the Government under contracts totaling several million dollars. It was during the latter's testimony-entirely explanatory-that the court called a recess for the stated purpose of requiring the United States Attorney to 'consider whether the public interest is served by a further prosecution of this case.' Upon the vigorous insistence of the United States Attorney himself, the trial was resumed and the Government called its third and fourth witnesses. The fourth witness was the first to testify as to the fraud upon the Government which related to a deliberate scheme to conceal from government inspectors defects in the devices. During direct examination the fourth witness was 'not sure' as to the date of a certain conference at which representatives of the corporate defendant were present. Thereafter at a recess period his memory was refreshed during a conversation with one of the Assistant United States Attorneys. Upon resuming the stand he corrected his previous testimony as to the date, placing it a few months earlier. On cross-examination he admitted that the error had been called to his attention by the Assistant. The court then excused the jury and after excoriating the Assistant called the jury back into session and directed the verdict of acquittal.
It is fundamental in our criminal jurisprudence that the public has a right to have a person who stands legally indirected by a grand jury publicly tried on the charge. No judge has the power before hearing the testimony proffered by the Government or at least canvassing the same to enter a judgment of acquittal and thus frustrate the Government in the performance of its duty to prosecute those who violate its law.
Here, as the United States Attorney advised the court, only three witnesses of the 'many * * * to be heard from * * * ' had testified. The court had only begun to hear what promised to be a protracted conspiracy case involving many witnesses. The Government had not rested. As the majority of the Court of Appeals observed, the District Court:
'abruptly terminated the Government's case * * * long before the Government had had an opportunity to show whether or not it had a case; and, moreover, he did so in ignorance of either the exact nature or the cogency of the specific evidence of guilt which Government's counsel said he had available and was ready to present.' 286 F.2d at 562-563.
At such a stage of the case the District Court had no power to prejudge the Government's proof-find it insufficient or unconvincing-and set the petitioners free.
On the second point, even if there were misconduct, the court still had no power to punish the Government because of the indiscretion of its lawyer. As this Court said in McGuire v. United States, 273 U.S. 95, 99, 47 S.Ct. 259, 260, 71 L.Ed. 556 (1927), '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.' At most, if there had been misconduct, the remedy would have been to declare a mistrial and impose appropriate punishment upon the Assistant United States Attorney, rather than upon the public. In my view the judgment of the Court of Appeals should, therefore, be affirmed.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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