Sometimes They Can’t Appeal Even When the Judge Is Wrong

December 18, 2012
By Hanging Out with Carl Gunn


  • Legal arguments such as the proper interpretation of a criminal statute which also depend on the evidence don’t have to be raised pretrial, even if the evidence the argument is based on is uncontested.
  • Raising these arguments during trial in the form of a Rule 29 motion for judgment of acquittal can create a double jeopardy bar to government appeal if the judge agrees with you.
  • And the defendant can’t be denied credit for acceptance of responsibility if he goes to trial simply to preserve a legal issue.


Before going off line for the holidays, I thought I’d share some thoughts about a double jeopardy rule that we don’t always think about in deciding when to make our arguments about sufficiency of the evidence. There are two types of sufficiency arguments you may have. One type of argument – which we only occasionally run into in federal court – is a case in which the government’s evidence simply isn’t strong enough to prove what everyone agrees they need to prove. The more common argument – though even this doesn’t come up that often – is where everyone agrees the government’s evidence doesn’t prove some fact, but there’s a dispute about whether that fact needs to be proven, most commonly in the form of disagreement about whether the statute requires some particular element. You say it does, and the prosecutor says it doesn’t.

Your first impulse on running into such an issue may be to think about filing a pretrial motion to dismiss, in which you explain how the statute requires the extra element the government can’t prove, or explain how the evidence as summarized in the discovery is insufficient on its face. But there’s two – sometimes three – reasons to hesitate about giving in to this first impulse.

First (this being the “sometimes three” reason), you may not want to show your hand on your view of the statute or the evidence because the government may go out and fix its proof problem. Maybe they don’t have any evidence right now on the extra element you’re going to argue for, but they could go out and get it if they knew you were going to argue it was required. Maybe the evidence reflected in the discovery that you’re going to argue isn’t good enough to prove some agreed-upon element could be supplemented if you pointed out its weaknesses. In these cases, you certainly don’t want to show your hand ahead of trial.

Second, even if you don’t have any concerns about the government being able to fix its proof problem, the law doesn’t allow a motion to dismiss that depends in part on the evidence, even when the evidence is completely undisputed. The Ninth Circuit so held in the case of United States v. Blanton, 476 F.3d 767, 771 (9th Cir. 2007), which I talk about a little more below, and also so held in multiple cases before that, see, e.g., United States v. Jensen, 93 F.3d 667, 669 (9th Cir. 1996); United States v. Nukida, 8 F.3d 665, 669 (9th Cir. 1993); United States v. Shortt Accountancy Corp., 785 F.2d 1448, 1452 (9th Cir.1986). The government may not object to you making your motion pretrial, may even prefer that you raise it pretrial, and might even argue that you’re required to raise it pretrial, but they’re (as they so often are) wrong. And the cases I just gave you say so.

Then there’s a third reason for not making your argument or motion pretrial, which is actually my main reason for writing this post and is suggested by the title of the post. You’ll note that I suggest just above that the government may prefer or even argue you’re required to raise the issue pretrial. And there’s a good reason they want that. That’s because the double jeopardy clause bars them from appealing if the district court happens to agree with you and grants your motion before there’s a verdict. That’s the holding of the Blanton case I cite above, and that holding is based on a plethora of court of appeals cases and Supreme Court cases. Those cases hold that double jeopardy bars a government appeal of a judgment of acquittal entered before a jury verdict, states that “it is irrelevant if the acquittal is based on a legal error,” Blanton, 476 F.3d at 771, and states that it doesn’t matter “that the acquittal may result from . . . erroneous interpretations of governing legal principles,” Smalis v. Pennsylvania, 476 U.S. 140, 144 n.7 (1986), quoted in Blanton, 476 F.3d at 771. The constitutional legal reasoning arises out of the rule that jeopardy attaches when a jury is sworn and the defendant is entitled to have his or her guilt decided by that jury. The reasoning is too complex to go through in full, but it’s nicely discussed in the Supreme Court cases if you want to dig into it in more scholarly depth.

I’ve had this come up in a couple of appeals I’ve handled that I can offer as examples. One is the Blanton case cited above, in which the government tried to appeal a district court grant of a judgment of acquittal on an enhancement fact; the Ninth Circuit dismissed the appeal, explaining that (1) the defendant not only wasn’t required to, but couldn’t, have made its legal insufficiency argument in a pretrial motion and (2) the grant of a judgment of acquittal in the midst of a trial couldn’t be appealed because of the double jeopardy bar (even though the trial on that fact, which had been bifurcated, was a bench trial). The other example is the case of United States v. Rojas-Flores, 384 F.3d 775 (9th Cir. 2004). The argument there was that the evidence was insufficient to prove possession of a weapon in prison in violation of 18 U.S.C. § 1791 because the definition of “weapon” didn’t apply to three metal “shanks” the defendant possessed. In that case, the district court had ruled against the defense, and so it was a defense appeal and the question of a double jeopardy bar to a government appeal wasn’t presented. Still, it’s an example of another case in which there would have been a double jeopardy bar if the district court had accepted the statutory interpretation argument, and the appellate court’s consideration of the argument shows these sort of arguments can be raised for the first time during trial.

Finally, before I leave you, let me address one last concern that might be entering your mind as you read this – will your client lose the credit that our wonderful sentencing guidelines give for “acceptance of responsibility”? The Rojas-Flores case also considered this question and held that a defendant can’t be denied credit for acceptance of responsibility when he goes to trial simply to preserve a legal argument. The court quoted an application note which says that a defendant cannot be denied credit for acceptance of responsibility just because he exercises his constitutional right to a trial and then gives as one example a case “where a defendant goes to trial to assert and preserve issues that do not relate to factual guilt (e.g., to make a constitutional challenge to a statute or a challenge to the applicability of a statute to his conduct).” U.S.S.G. § 3E1.1, comment. (n.2), quoted in Rojas-Flores, 384 F.3d at 780. So no reason to fear this penalty.