Fong Foo v. United States

PETITIONER: Fong Foo, Robert Knupp, Standard Coil Products Co.
RESPONDENT: United States
LOCATION: U.S. District Court for the District of Massachusetts

DECIDED BY: Warren Court (1958-1962)
LOWER COURT: United States Court of Appeals for the First Circuit

CITATION: 369 US 141 (1962)
ARGUED: Jan 16, 1962
DECIDED: Mar 19, 1962
GRANTED: Jun 19, 1961

Archibald Cox - for the respondent
Arthur Richenthal - for the petitioners

Facts of the case

Standard Oil Co. and two employees, Fong Foo and Robert Knupp were tried for conspiracy and concealing material facts within the jurisdiction of a governmental agency. The group allegedly falsified tests on goods manufactured at Standard Oil’s plant. Before the government finished presenting their case, the district court judge directed the jury to return verdicts of acquittal for all parties on all counts. He then entered formal judgments of acquittal on the grounds of improper conduct by the Assistant U.S. States Attorney and a lack of credibility in the testimony of government witnesses. The United States filed for a writ of mandamus from the U.S. Court of Appeals for the First Circuit, asking the court of vacate the judgments and order a new trial. The court granted the writ, holding that the district court did not have the power to direct the judgment of acquittal.


(1) Did the district court judge have the power to order acquittal before the prosecution rested its case?

(2) Does the double jeopardy clause of the Fifth Amendment protect the petitioners from a second trial?

Media for Fong Foo v. United States

Audio Transcription for Oral Argument - January 16, 1962 (Part 1) in Fong Foo v. United States

Audio Transcription for Oral Argument - January 16, 1962 (Part 2) in Fong Foo v. United States

Earl Warren:

Mr. Richenthal, you may continue your argument.

Arthur Richenthal:

May it please the Court.

I should like to make clear that, on the -- on our position as to the non-reviewability of a verdict of acquittal that I need not have gone into the explanation of the trial in the District Court.

I did that, however, to make clear to the Court that, in answer to the government's position that a District Court judge does have the power to direct a verdict of acquittal where the government has failed to make out an essential part of its case, whether erroneous or not.

And, I wanted to make clear that on this record, on the theory of the trial, an essential part of the government's case was an explanation of the operation of this electronic device which clearly was not made out due to the inadequate, incredible testimony of the government inspector.

And, I do want to say, in answer to one question from Mr. Justice Harlan, that the misconduct of the Assistant United States Attorney, in our opinion, was not the reason for the directed verdict of acquittal but, rather, it made a bad government case impossible and triggered the final action of the Court.


Arthur Richenthal:

Well, I respectfully feel it was a bad government case, sir.


Arthur Richenthal:

Now, coming back to the government's alleged distinction of Regina versus Middlesex, I think it must become fairly obvious on an examination of the record that, certainly, their distinction that Judge Wyzanski acted without knowledge of the government's case is a distinction without any validity because, after all the eight days of testimony, and all the proceedings and briefs that had taken place and colloquies with counsel, he knew much more than the judge who claimed to have read the depositions in the Middlesex Justice case.

In passing, I ask the Court to read the Queen's Bench decision, not the English Report decision which is quoted.

The Queen's Bench decision is the one referred to in the government's brief.

Now, we urge upon the Court to continue the historic principle that a verdict of acquittal is not reviewable and, certainly, should not be reviewed in the instant case.

We feel by giving an independent judiciary, this non-reviewable right is no more horrendous than giving the government attorney the right to nolle pros in criminal proceedings which right is non-reviewable on a much broader scale.

We urge the Court to reverse the order of the First Circuit.

Earl Warren:

Mr. Solicitor General.

Archibald Cox:

Mr. Chief Justice and may it please the Court.

In this very extraordinary case, we base our case upon three propositions.

First, we assert the basic right of people to be heard in the prosecution of a valid indictment.

When a defendant has been charged with crime by the grand jury in a lawful indictment, then, we submit, the district judge has no power to bar prosecution by entering a judgment of acquittal without a hearing.

I simply illustrate the proposition by putting a converse case.

If a judge were trying a criminal defendant without a jury and, at the end of hearing two character witnesses for the defense, the judge were to say “nothing can convince me that this scoundrel is innocent.

I find him guilty and enter judgment forthwith.”

That that judgment would not merely be erroneous, but that the judgment would be void and could be collaterally attacked years later on habeas corpus or under --

William J. Brennan, Jr.:

Does the decision (Inaudible) material?

Archibald Cox:

No, because my hypothesis in this case, the judge was trying the case without a jury.

I meant -- I think I stated that in the facts.

I meant to.

No, because he would've denied a fair hearing and, also, our case is the converse, we submit, that essentially the same proposition stands.

Felix Frankfurter:

The difficulty is, Mr. Solicitor, that the rights are correlative.