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Carlisle v. United States (94-9247), 517 U.S. 416 (1996).
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[ Scalia ]
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[ Souter ]
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Dissent
[ Stevens ]
Concurrence
[ Ginsburg ]
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No. 94-9247


CHARLES CARLISLE, PETITIONER v. UNITED STATES

on writ of certiorari to the united states court of appeals for the sixth circuit

[April 29, 1996]

Justice Stevens , with whom Justice Kennedy joins, dissenting.

Viewed in this light, the majority places more reliance on the negative implication in Rule 29 than its permissive language can bear. Assuming it exists at all, this negative implication is far too weak to justify the conclusion that Rule 29 manifests that Congress desired to withdraw a federal court's inherent authority to acquit an innocent defendant.

Trial judges are kept busy responding to motions, objections and requests by the litigants. It is quite wrong, however, to assume that a judge is nothing more than a referee whose authority is limited to granting or denying motions advanced by the parties. As Learned Hand tersely noted, a "judge, at least in a federal court, is more than a moderator; he is affirmatively charged with securing a fair trial, and he must intervene sua sponte to that end, when necessary." Brown v. Walter, 62 F. 2d 798, 799 (CA2 1933). That duty encompasses not only the avoidance of error before it occurs, but the correction of error that may have occurred earlier in a proceeding.

The basic principle has been stated many times. There is a "power `inherent in every court of justice so long as it retains control of the subject matter and of the parties, to correct that which has been wrongfully done by virtue of its process.' Arkadelphia Co. v. St. Louis Southwestern Ry. Co., 249 U.S. 134, 146. See Northwestern Fuel Co. v. Brock, 139 U.S. 216, 219." United States v. Morgan, 307 U.S. 183, 197 (1939). Although that statement was made in a civil case, we have made it clear that a federal court has even broader discretion to notice error independently in the trial of a criminal case than in civil cases. Crawford v. United States, 212 U.S. 183, 194 (1909).

Examples of the exercise of the federal courts' inherent powers are abundant in both our civil and our criminal jurisprudence. [n.1] Indeed, when he was serving on the Court of Appeals for the Ninth Circuit, then Judge Kennedy, after considering a series of cases that recognized various inherent judicial powers, [n.2] correctly pointed out:

"Exercise of judicial power by entry of orders not expressly sanctioned by rule or statute in order to correct the legal process or avert its misfunction has been approved in varied circumstances. Arizona v. Manypenny, 672 F. 2d 761, 765, cert. denied, 459 U.S. 850 (1982).

When a federal court declines to enter a judgment of conviction against a defendant whom it should have directed the jury to acquit, it clearly corrects the legal process and averts its misfunctioning. Given the various sua sponte powers that district courts unquestionably may exercise in order to ensure that legally innocent defendants are not convicted, it is clear that they also possess the inherent authority sua sponte to enter post-verdict acquittals when the Government has failed to prove that a defendant is guilty.

District courts have long exercised their inherent power to direct an acquittal sua sponte when the prosecution fails to prove its case at the close of evidence. See Wiborg v. United States, 163 U.S. 632, 659 (1896); Cady v. United States, 293 F. 829 (CADC 1923); Nosowitz v. United States, 282 F. 575, 578 (CA2 1922). [n.3] They have also long exercised their inherent power to set aside a jury verdict for insufficiency of the evidence sua sponte. See United States v. Harding, 26 F. Cas. 131, 136 (No. 15,301) (ED Pa. 1846); United States v. Fullerton, 25 F. Cas. 1225 (No. 15,176) (SDNY 1870); see also F. Wharton, Criminal Law of the United States 669 (1846) ("Where, however, evidence is not sufficient in law to authorize a verdict, a new trial will be granted, even though no objection be made at the trial"); id., at 643(s) (explaining that the judge reserves "it to himself, if there be an improper conviction, to arrest the judgment or set aside the verdict"); Charles v. State, 4 Port. 107, 109-110 (Ala. 1836). [n.4]

The District Courts' longstanding exercise of these inherent powers is entirely consistent with the conclusion that a district court acts within its power when it enters a judgment of acquittal upon setting aside an unsupported jury verdict. To be sure, the early cases reveal that district courts typically ordered new trials, rather than acquittals, upon concluding that the jury's verdict was not supported by legally sufficient evidence. However, subsequent cases demonstrate that as courts became concerned that the new trial remedy trenched on the prohibition against double jeopardy, they began to enter judgments of acquittals. See Ex parte United States, 101 F. 2d 870, 878 (CA7 1939), aff'd by an equally divided court in United States v. Stone, 308 U.S. 519 (1939).

The earliest cases involve appellate courts entering judgments of acquittal in order to remedy a district court's failure to direct the jury to acquit. See Nosowitz v. United States, 282 F. 575 (CA2 1922); Cherry v. United States, 78 F. 2d 334 (CA7 1935); Reiner v. United States, 92 F. 2d 823 (CA9 1937); see also France v. United States, 164 U.S. 676 (1897) (remanding to the District Court with directions to enter such judgment); Romano v. United States, 9 F. 2d 522 (CA2 1925) (same). Later cases reveal that District Courts soon followed suit, either by ruling on reserved, pre verdict acquittal motions or by granting postverdict motions to acquit. See Ex parte United States, 101 F. 2d 870 (CA7 1939); United States v. Standard Oil Co., 23 F. Supp. 937 (WD Wis. 1938), aff'd in United States v. Socony Vacuum Oil Co., 310 U.S. 150, 165, n. 1 (1940); State v. Meen, 171 Wis. 36 (1920) (same); see also Advisory Committee's Notes to Rule 29 (endorsing these practices). Moreover, prior to the adoption of Rule 29 in 1944, the Fifth Circuit explained that, even after a jury returns a verdict, a court "may and should" sua sponte review the sufficiency of the evidence. Ansley v. United States, 135 F. 2d 207, 208 (1943).

In light of this history, it makes no sense to conclude that a federal district court lacks the inherent power to enter sua sponte a postverdict judgment of acquittal. A trial court's postverdict entry of a judgment of acquittal is in substance no different from an appellate court's order directing entry of that same judgment. Moreover, the double jeopardy concerns that may bar a district court from ordering a new trial to remedy its failure to have directed an acquittal cannot sensibly be understood to prohibit the district court from providing a defendant some measure of relief from a legally insufficient guilty verdict. See United States v. Smith, 331 U.S. 469, 474 (1947). Finally, given that a motion was not thought to be needed in order for the District Court to exercise its inherent power either to direct an acquittal, or to set aside an unsupported verdict and order a new trial, there is no reason to conclude that a district court is utterly powerless to remedy a wrongful conviction in the exceedingly rare circumstance in which an unforeseen accident results in the defendant's failure to file a motion for acquittal.

In all events, a district court clearly has the inherent authority to ensure that a legally innocent defendant is not wrongfully convicted. It would be most strange to conclude that this authority, which enables a district court to keep a case from the jury altogether when the Government fails to prove its case, does not permit that same court to revise a guilty verdict that the jury returns despite the Government's insufficient proof. That conclusion is particularly difficult to fathom when one considers that the latter action may be appealed by the Government, while the former may not. United States v. Wilson, 420 U.S. 332, 345 (1975). Not surprisingly, therefore, numerous courts have recognized that, prior to the passage of Rule 29, district courts possessed the inherent power to acquit defendants sua sponte. See United States v. Hughes, 759 F. Supp. 530, 532-536 (WD Ark.), aff'd, sub nom. United States v. Haren, 952 F. 2d 190 (CA8 1991); United States v. DiBernardo, 880 F. 2d 1216, 1225, n. 4 (CA11 1989); United States v. Coleman, 811 F. 2d 804 (CA3 1987); United States v. Giampa, 758 F. 2d 928, 936, n. 1 (CA3 1985); Arizona v. Manypenny, 672 F. 2d, at 765; Ansley v. United States, 135 F. 2d, at 208; see also United States v. Weinstein, 452 F. 2d 704, 713, 714 (CA2 1971); United States v. Broadus, 664 F. Supp. 592, 595-598 (DC 1987).

The majority states that no pre-Rule case establishes the precise power at issue here. Ante, at 11, n. 5. That is true but unremarkable. The majority does not dispute that, prior to the passage of Rule 29, trial courts possessed the inherent power to remedy unsupported guilty verdicts by ordering new trials sua sponte. After Rule 29 was adopted, this Court pointed out the double jeopardy concerns raised by the sua sponte exercise of the new trial remedy. See United States v. Smith, 331 U. S., at 474. Since that time, numerous cases have concluded that courts may remedy unsupported jury verdicts by entering judgments of acquittal. The majority offers no principled reason for concluding that this more recent remedy is beyond the power of district courts, even though the prior remedy was not.

In sum, the error correcting power that is " `inherent in every court of justice so long as it retains control of the subject matter and of the parties,' " Morgan, 307 U. S., at 197, encompasses the kind of error at issue in this case. Therefore, absent some express indication that Congress intended to withdraw the power that implicitly attends its initial grant of jurisdiction, a district court acts well within its discretion when it sets aside a jury verdict and acquits a defendant because the prosecution failed to prove its case.

Because the Acts of Congress investing federal judges with jurisdiction to try criminal cases are the source of a district court's power to set aside unsupported jury verdicts, I have no occasion to disagree with the Court's view that petitioner errs in relying on Rule 29 as the source of the District Court's authority in this case. I do, however, strongly disagree with the Court's own reliance on that Rule for the quite different conclusion that it clearly prohibits the power exercised by the District Court here.

In Part III of its opinion, the majority asserts that the District Court's action "contradicted the plain language of Rule 29(c), and effectively annulled the 7 day filing limit," ante, at 10, and that "the clarity of the text" suffices to prohibit the district court's action. Ibid. The majority assumes that these conclusory assertions follow implicitly from its determination in Part II of its opinion that Rule 29 does not authorize the District Court to set aside a jury verdict sua sponte.

In my view, the Rule serves three salutary purposes that are in no tension with a district court's inherent power to enter a judgment of acquittal sua sponte. None of these purposes would be frustrated if the Rule were understood to coexist with, though not to authorize, a district court's power to avoid imposing sentence on an innocent defendant in the truly exceptional case in which evidence of guilt is wholly lacking.

First, subsection (a) confirms the view that a judge has a duty to direct an acquittal if the prosecution has failed to prove its case at the close of evidence. The Rule's affirmation of that duty is in no way inconsistent with a court's exercise of its postverdict power to enter sua sponte a judgment of acquittal. As then Judge Kennedy explained for the Ninth Circuit in Arizona v. Manypenny, 672 F. 2d, at 764: "We do not read the mention in Rule 29(a) of a court granting such a judgment `on its own motion' before submission to a jury as an elimination of a court's inherent power to grant such a judgment after submission to the jury."

Second, subsection (b) accommodates the defendant's right to move for a directed acquittal with the Government's right to seek appellate review. Indeed, the subsection was amended in 1994 for the very purpose of striking a more proper balance between those two interests. See Advisory Committee's Notes to Fed. Rule Crim. Proc. 29(b), 18 U. S. C. App., pp. 784-785. As a result, a district court's sua sponte decision to acquit after the jury returns a guilty verdict can hardly be said to undermine the purpose of subsection (b). The defendant's interests are obviously fully protected by an acquittal, while the Government's right to appeal is protected because the jury has already returned its verdict of guilt. See United States v. Wilson, 420 U. S., at 345. [n.5]

Third, subsection (c) requires defense counsel to file the postverdict motion for judgment of acquittal promptly, while the trial judge presumably retains a firm recollection of the evidence and therefore is able to rule expeditiously and efficiently. The untimeliness of a later motion provides the judge with a sufficient reason for denying it without even reading it or reviewing the transcript. Thus, a judge's entirely discretionary decision to enter sua sponte an acquittal after the 7 day period in no way annuls the 7 day deadline. Defendants are still bound by that time limitation, and the Rule thus serves the useful function of limiting a defendant's right to require a judge to reconsider the sufficiency of the evidence. As then Judge Kennedy explained: "Rule 29(c) creates a deadline by which defendants must present motions for judgment of acquittal to the court; it does not address the court's inherent power to grant such a judgment." Arizona v. Manypenny, 672 F. 2d, at 764.

The majority nevertheless maintains that the Rule must be read to require judges, in some instances, to enter judgments of conviction against defendants they know to be innocent. The majority does not argue that Rule 29 expressly prohibits a district court from acting on its own to set aside an unsupported jury verdict. Rather, it relies solely on the negative inference that it draws from the absence of three words in one sentence of Rule 29(c). Ante, at 7. [n.6] Specifically, the majority seizes upon the "notabl[e] absen[ce]" of the phrase "on such motion" in the third sentence of the Rule, ante, at 6, and concludes that this omission "convey[s] the idea that, where a jury has not returned a verdict, a court can act without motion, but where a jury has returned a guilty verdict, it cannot." Ante, at 7.

In light of the pre-Rule precedent establishing a district court's inherent power to review sua sponte a jury verdict for sufficiency of the evidence, see Ansley v. United States, 135 F. 2d, at 208, the majority reads far too much into the omission. The caption to Rule 29(c) makes clear that the subsection only contemplates judicial action taken in response to a motion. The first sentence explains that a motion may be made after a jury's discharge whether or not a guilty verdict has been returned. The next sentence sets forth the action that the district court may take when such a motion is filed after the jury returns a guilty verdict. In a similar vein, the third sentence sets forth the action that the district court may take when no verdict has been returned. The omission of the words "on such motion" from the third sentence surely just reflects a draftsman's sensible decision to avoid a patent redundancy rather than a cryptic intent to change the law by prohibiting a judge from exercising his or her inherent power to enter a judgment of acquittal. [n.7]

Common sense refutes what the text fails to compel. Under the majority's reading, Rule 29(c) establishes a most inefficient regime for setting aside unsupported jury verdicts by requiring defendants to file appeals and collateral challenges to judgments of conviction that district judges knew to be unsupported. Given that Federal Rule of Criminal Procedure 2 directs that the rules "shall be construed to secure simplicity in procedure, fairness in administration and the elimination of unjustifiable expense and delay," there is no reason to read the ambiguity in Rule 29(c) to prohibit a district court from correcting a plain error that would otherwise be challenged in a subsequent court proceeding. [n.8]

Indeed, our decision in Sisson v. United States, 399 U.S. 267 (1970), reveals that when we previously considered Rule 29 we did not understand it to prohibit a district court from sua sponte entering a postverdict judgment of acquittal. There, defendant's counsel moved postverdict to arrest judgment under Federal Rule of Criminal Procedure 34. 399 U. S., at 276. The District Court purported to grant the Rule 34 motion on evidentiary and constitutional grounds that the defendant's motion did not raise. Id., at 277, n. 6. The Government sought review from this Court pursuant to 18 U.S.C. § 3731 which at that time permitted governmental appeals from orders arresting judgment but not from orders entering judgments of acquittal. 399 U. S., at 279-280.

In holding that we lacked jurisdiction to hear the Government's appeal, we explained that although the District Court termed its order an "arres[t] [of] judgment," it was in fact an acquittal. Id., at 288. The portion of Justice Harlan's opinion that five Members of the Court joined equated the District Court's sua sponte acquittal with an acquittal by a jury. As support for the comparison, the opinion explained that, under Rule 29, "judges, like juries, can acquit defendants." Id., at 290. Moreover, it noted that Rules 29(b) and (c) of the Federal Rules of Criminal Procedure "expressly allow a federal judge to acquit a criminal defendant after the jury `returns a verdict of guilty.' " 399 U. S., at 290; see also United States v. Weinstein, 452 F. 2d, at 713, 714 (explaining that Sisson determined that the District Court in that case acted within its jurisdiction in entering the postverdict judgment of acquittal).

Although the merits of the judgment of acquittal were not before the Court in Sisson, the trial court's jurisdiction to enter the judgment plainly was. Just as a trial court's postjudgment acquittal could not have mooted a pending appeal, neither could a jurisdictionally barred action have prevented an appeal from being taken. Nevertheless, the Sisson Court did not identify any jurisdictional bar to the judge's entry of a postverdict acquittal motion, even though no Rule 29 motion had been filed. I am therefore mystified as to why the Court now concludes that the Rule can only be read to deprive the district court of jurisdiction to acquit postverdict in the absence of a defendant's motion.

Our prior construction of procedural rules that employ permissive language similar to that used in Rule 29 reinforces the implicit conclusion that we reached in Sisson. As we recently explained, our prior cases reveal that although Congress may limit the exercise of the inherent power of lower federal courts, " `we do not lightly assume that Congress has intended' " to do so. Chambers v. NASCO, Inc., 501 U.S. 32, 47 (1991) (quoting Weinberger v. Romero Barcelo, 456 U.S. 305, 313 (1982)). That interpretive principle suggests that something far more than an ambiguous silence is required to withdraw a district court's inherent power.

Link v. Wabash Railroad Co., 370 U.S. 626 (1962), sets forth the proper analysis. In Link, we rejected the argument that the authority granted to a defendant by Rule 41 of the Rules of Civil Procedure to move for an involuntary dismissal of a complaint, by negative implication, precluded such a dismissal on the court's own motion. In his opinion for the Court, Justice Harlan explained:

"We do not read Rule 41(b) as implying any such restriction. Neither the permissive language of the Rule--which merely authorizes a motion by the defendant--nor its policy requires us to conclude that it was the purpose of the Rule to abrogate the power of courts, acting on their own initiative, to clear their calendars of cases that have remained dormant because of the inaction or dilatoriness of the parties seeking relief. The authority of a court to dismiss sua sponte for lack of prosecution has generally been considered an `inherent power,' governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases. 370 U. S., at 630. [n.9]

Our practice with respect to petitions for rehearing is also instructive. Such petitions, like motions for a judgment of acquittal, are routinely filed and almost never granted. If not filed within the time specified in our rules, it is appropriate to deny such a petition without even reading it. On rare occasions, however, we have held that the interest in the even handed administration of justice outweighs the interest in finality and granted such petitions even though untimely and even though there is not a word in our Rules that authorized such action.

Thus, in United States v. Ohio Power Co., 351 U.S. 980 (1956), the Court on its own initiative vacated an earlier order denying a petition for rehearing and, in the following Term, granted the previously denied petition. United States v. Ohio Power Co., 353 U.S. 98 (1957). While Justice Harlan dissented from that disposition, he did not disagree with the proposition that "the Court's inherent power over its judgments" included the authority to take action that "would otherwise be out of time under the Rules." Id., at 104.

Just three years after the Ohio Power decision, Justice Harlan had occasion to endorse the exercise of a District Court's use of its inherent powers in apparent conflict with the language of the Federal Rules of Criminal Procedure. Explaining his denial of an application for bail, he correctly observed that those Rules should not be construed to withdraw the District Court's inherent power to revoke bail during the course of a criminal trial. See Fernandez v. United States, 81 S. Ct. 642, 644, n. 7, 5 L. Ed. 2d 683, 685, n. 7 (1961) (in chambers). In doing so, he exposed the basic flaw in an argument comparable to the one accepted by the Court today.

Justice Harlan explained that even though Federal Rule of Criminal Procedure 46(a)(1) stated that a " `person arrested for an offense not punishable by death shall be admitted to bail,' " that rule did not purport to withdraw the district courts' "authority, as an incident of their inherent powers to manage the conduct of proceedings before them, to revoke bail during the course of a criminal trial, when such action is appropriate to the orderly progress of the trial and the fair administration of justice." Fernandez v. United States, 81 S. Ct., at 644, 645, n. 7, 5 L. Ed. 2d, at 685, n. 7, 686 (in chambers). He properly read the seemingly mandatory language of Rule 46(a)(1) against a pre-Rule legal background that afforded district courts a greater measure of discretion. Ibid.; see also United States v. Anguilo, 755 F. 2d 969, 972 (CA1 1985) (Breyer, J.). Given that Justice Harlan also authored Link, which holds that a procedural rule permitting a dismissal on motion does not preclude a dismissal without motion, I doubt that the majority's attempt to distinguish Fernandez would have been persuasive to its author.

Our decision in United States v. Smith, 331 U.S. 469 (1947), is consistent with our prior cases holding that permissive rules do not withdraw pre-existing inherent powers. [n.10] Although the majority contends that Smith supports the inference that the draftsmen of Rule 29 intended to limit the court's authority to take action in response to a timely motion by counsel, that case actually supports the proposition that the adoption of the Federal Rules of Criminal Procedure did not modify the pre existing power of the district court to set aside an erroneous judgment while it retains jurisdiction of a case.

The error committed by Judge Smith was his attempt to assert jurisdiction in a criminal case after the judgment of conviction had been affirmed on appeal and even after the defendant had started to serve his sentence. There was not even an arguable basis for suggesting that the judge then had jurisdiction to order a new trial. Id., at 474; see United States v. Mayer, 235 U.S. 55, 70 (1914). [n.11] The only theory that might have justified his action was his lawyer's argument that the Rules had expanded the District Court's jurisdiction beyond the end of the term of court in which the trial had been conducted. This Court's reasons for holding that the Rules did not enlarge that jurisdiction equally support the proposition that they did not diminish that jurisdiction either.

In fact, if one takes note of the extraordinary character of Judge Smith's attempt to set aside a conviction after it had been affirmed on appeal and after the defendant had been incarcerated for several months, it is easy to understand why Justice Jackson's opinion for the Court expressed concern that such action might give rise to an appearance of impropriety, and therefore provided us with the dictum concerning possible ex parte approaches to the judge on which today's majority relies. The suggestion that that dictum has any relevance to the period between the return of the jury's verdict and the imposition of sentence is not only misplaced, but also represents a highly inappropriate comment on the integrity of the federal judiciary. Judge Smith's singularly bizarre action a half century ago provides no basis for either the inference or the rule that today's majority thinks the Smith opinion supports. See Arizona v. Manypenny, 672 F. 2d, at 765, n. 10 (explaining that "Smith cannot be applied indiscriminately outside the particular factual context at issue there").

The decision in Smith was a correct application of the principle that should control the disposition of this case. There is a "power `inherent in every court of justice so long as it retains control of the subject matter and of the parties, to correct that which has been wrongfully done by virtue of its process.' " United States v. Morgan, 307 U. S., at 197. Of course, that power does not survive after the court's jurisdiction of the subject matter has expired. It is surely sufficient, however, to enable the judge to refuse to impose sentence on a defendant when the record does not contain evidence of guilt.

As a result, Rule 29(c) is best read to state the proper procedures for handling and filing defense motions for acquittals, but to leave unaddressed the court's authority to act on its own initiative. [n.12] Such a construction comports with the sound historical and commonsense reasons for concluding that Congress would not likely have intended to require a district court to enter a judgment of conviction against a defendant whom it knows to be innocent. [n.13]

A brief final word about the practical significance of today's holding. There is no real danger that district judges will be burdened by a flood of untimely motions. On the other hand, the possibility that an Act of God may preclude the timely filing of a meritorious motion cannot be denied. Because evidence of guilt is "absolutely vital to defendants," Wiborg, 163 U. S., at 658, that possibility, no matter how remote, is sufficient to justify a district court's inherent authority to avert the conviction of a legally innocent defendant despite the absence of a timely motion. Because there is no language in Rule 29 that purports to constrain the authority exercised in this case, I would reject the majority's interpretation of the Rule and adhere to the common sense understanding revealed by the Court's holding in Sisson.

Accordingly, I respectfully dissent.


Notes

1 A few examples illustrate the breadth of that power. We have held that a district court "has inherent power to dismiss a suit pursuant to the doctrine of forum non conveniens," Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 502 (1947); to dismiss an appeal in a criminal case if the defendant is a fugitive, Molinaro v. New Jersey, 396 U.S. 365, 366 (1970); to enforce compliance with lawful orders through civil contempt, Shillitani v. United States, 384 U.S. 364,370 (1966); to order special conferences that will aid in the disposition of a complex antitrust case, United States v. United States Gypsum Co., 340 U.S. 76, 81 (1950); and to stay proceedings "to control the progress of the cause so as to maintain the orderly processes of justice"; Enelow v. New York Life Ins. Co., 293 U.S. 379, 381-382 (1935). We have also recognized the court's inherent power to enforce its judgments, see Peacock v. Thomas, 516 U. S. ---- (1996), as well as its inherent power to award attorney's fees in exceptional cases. Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 256 (1975).

2 "E.g., Roadway Express, Inc. v. Piper, 447 U.S. 752, 764-67 . . . (1980) (assessing costs against parties or attorneys); Cooke v. United States, 267 U.S. 517, 534 . . . (1925) (contempt power); United States v. Armstrong, 621 F. 2d 951, 954-55 (9th Cir. 1980) (allowing inspection of property belonging to third parties); Franquez v. United States, 604 F. 2d 1239 (9th Cir. 1979) (ordering jury trial on an issue when not contemplated by statute); In re Sealed Affidavit(s) to Search Warrants (Agosto), 600 F. 2d 1256 (9th Cir. 1979) (sealing papers filed with the court); United States v. Simmons, 536 F. 2d 827, 832-34 (9th Cir.), cert. denied, 429 U.S. 854 . . . (1976) (dismissal for want of prosecution); United States v. Malcolm, 475 F. 2d 420 (9th Cir. 1973) (ordering a defendant to undergo a psychiatric exam)." Arizona v. Manypenny, 672 F. 2d 761, 765 (CA9 1982).

3 Indeed, Cady referred to "the well established and oft repeated principle that, unless there is substantial evidence of facts which exclude every other hypothesis but that of guilt, it is the duty of the trial court to instruct the jury to return a verdict for the accused . . . ." Cady v. United States, 293 F., at 830 (emphasis added). Moreover, in both of the cases cited by the majority as supporting the existence of the power exercised here, United States v. McCracken, 26 F. Cas. 1069 (No. 15,664) (ED Va. 1878), and United States v. Hayden, 26 F. Cas. 236, 238 (No. 15,333) (NDNY 1877), see ante, at 10, the district judges directed the jury to return a verdict of not guilty. In the Hayden case, the court went on to describe what I assume was the settled practice among all federal judges at the time: "I have made it a rule to direct a verdict of not guilty where, in my opinion the evidence will not authorize the jury to find a verdict of guilty, or, if so found, I would set aside the verdict as contrary to evidence. I think this is a case of that class, and I therefore direct the jury to find a verdict of not guilty." Id., at 238.

4 Out of deference to the King, the rule was apparently different in England. See 1 J. Stephen, A History of the Criminal Law of England 312-313 (1883); but cf. 3 W. Blackstone, Commentaries *389-390. Even still, English judges evaded the procedural bar by declining to enter sentence and requesting the Crown to pardon wrongfully convicted defendants. These requests were routinely granted. See Ex parte United States, 101 F. 2d 870, 875, n. 15 (CA 1939). Judge Kane explained that he did "not remember to have read a single instance in which the judicial recommendation has been disregarded by the ministers of the crown, and I do not suppose that it could be without a breach of the constitution of the realm." United States v. Harding, 26 F. Cas. 131, 137 (No. 15,301) (ED Pa. 1846). As a result of this consistent practice, he concluded that "[i]n England, therefore, the denial to the courts of a revisory power over verdicts in any cases is apparent, rather than real. The judge, if dissatisfied with a conviction on the merits, respites the sentence or reprieves the prisoner, and the king's prerogative interposes to do justice as a thing of course." Ibid.

5 The majority is also wrong to contend that it would make a "farce" of subsection (b) to construe it to permit judges to act sua sponte. Ante, at 6. There are sound reasons for setting forth regulations concerning a court's power to reserve a defense motion that it must entertain even if the court also possesses the entirely discretionary power to acquit at any time on its own initiative as long as it possesses jurisdiction over the case. For example, the new Rule 29(b) makes clear that the district court, even if it reserves a motion for acquittal filed after the prosecution's case in chief, may not consider any evidence submitted thereafter in disposing of the motion. That limitation on the district court's authority protects a defendant's right to make a motion for acquittal and to put on rebuttal evidence without risking that new evidence of guilt will emerge. Such a protection serves a useful function even though in the absence of a motion to acquit a court would have the discretionary power to enter judgment in the defendant's favor. Thus, it is simply not true that there "would be no need" for the procedures set forth in Rule 29(b) if, "even without reserving, the court had continuing power to grant judgment of acquittal on its own." Ante, at 6.

6 Rule 29(c) reads as follows:

"(c) Motion After Discharge of Jury. If the jury returns a verdict of guilty or is discharged without having returned a verdict, a motion for judgment of acquittal may be made or renewed within 7 days after the jury is discharged or within such further time as the court may fix during the 7 day period. If a verdict of guilty is returned the court may on such motion set aside the verdict and enter judgment of acquittal. If no verdict is returned the court may enter judgment of acquittal. It shall not be necessary to the making of such a motion that a similar motion has been made prior to the submission of the case to the jury."

7 The inclusion of the phrase "on such motion" in the second sentence of Rule 29(c) is no mystery. Unlike the present rule, the original version of Rule 29 permitted the defendant to move either for a new trial or for an acquittal after the jury had been discharged. The next sentences of the original Rule stated that the district court was authorized to grant either a new trial or an acquittal whether or not the jury returned a verdict. The inclusion of the phrase "on such motion" was necessary in order to make clear that the judge could not order a new trial unless the defendant first requested one.

Contrary to the majority's construction of the relevant language, there is no reason to suppose that the phrase "on such motion" in the old Rule applied only to the circumstance in which the jury returned a verdict. Under such a construction, the original rule would have been intended to "conve[y] the idea," ante, at 7, that the District Court possessed the authority to impose a new trial against the defendant's wishes whenever the jury had been discharged without having returned a verdict. It is clear that the drafters never intended to convey such a potentially unconstitutional idea. Indeed, it was the drafters' concern that the original Rule might be subject to the potentially unconstitutional "interpretation that a motion for judgment of acquittal gives the court power to order a new trial even though the defendant does not a wish a new trial and has not asked for one," that led them to eliminate all references to new trial orders in what is now Rule 29(c). Advisory Committee's Notes on Fed. Rule Crim. Proc. 29, 18 U. S. C. App., pp. 784-785. There is no hint in the Advisory Committee's Notes, or the Rule's drafting history, that this limiting revision was simultaneously intended to link the district court's power to acquit for insufficiency of the evidence with the jury's return of a verdict.

8 The majority dismisses these concerns by suggesting that because we agree that a district court lacks the power to enter a judgment of acquittal after an appeal is taken, we disagree only as to "timing". Ante, at 15. In truth, our point of disagreement is more fundamental. It concerns the power of a court to correct a miscarriage of justice while it retains jurisdiction over a case. Because an appeal can only be taken once a judgment has been entered, the real issue that divides us is whether the Federal Rules of Criminal Procedure compel a district court to enter a judgment of conviction against a defendant whom it knows to be innocent.

9 In an effort to distinguish Link, the Court asserts that the practice of setting aside insufficient jury verdicts in criminal cases is far less established than was the practice of dismissing cases for want of prosecution. It further contends that the "clarity of the text," ante, at 10, in this case renders the logic of Link inapplicable. Link cannot fairly be read to suggest that inherent powers of recent origin may be more easily withdrawn than those of older vintage. In any event, the court's inherent power to set aside criminal convictions unsupported by evidence has been long accepted. Finally, given that Justice Harlan authored both Link and Sisson, I find most unpersuasive the majority's conclusion that the "clarity of the text" in Rule 29 should occasion a different result from that reached in Link.

10 That is not to say that permissive rules establish inherent powers. For that reason, the majority's recitation of various permissive rules for which no analogous inherent power exists is quite beside the point. Ante, at 15-16.

11 As the Court pointed out in United States v. Smith, 331 U.S. 469 (1947), new trial orders are particularly problematic because they raise serious double jeopardy concerns. Of course, no such concerns are present here.

12 For this reason, the Government's reliance on Rule 45 of the Federal Rules of Criminal Procedure is misplaced. Although Rule 45 generally permits a district court to hear an untimely motion if the defendant can demonstrate that excusable neglect caused the late filing, it specifically prohibits a district court from extending the time for "tak[ing] any action" under Rule 29. As I have explained, Rule 29(c) only addresses the rules that govern a defendant's post-verdict acquittal motion; it does not address the district court's sua sponte post-verdict acquittal power. Thus, while Rule 45 serves to make clear that district courts may not entertain defense motions for acquittal filed more than seven days after the jury's discharge, it speaks not at all to the court's inherent power to decline to enter a judgment of conviction sua sponte when the jury's verdict is not supported by legally sufficient evidence.

13 The majority contends that if we accept that district courts have the discretion to refuse to consider untimely motions for acquittal, then we must also accept that district courts have the discretion to convict defendants whom they know to be innocent. Ante, at 15. The imaginative suggestion that some district judges might choose to convict those they believe to be innocent surely does not justify the conclusion that other judges should be required to do so.