Gonzalez v. Justices of Mun. Court of Boston, 03-2732.

• Decision Date: 24 August 2005
• Docket Number: No. 03-2732.,03-2732.
• Citation: 420 F.3d 5
• Parties: Jorge J. GONZALEZ, Petitioner, Appellant, v. The JUSTICES OF the MUNICIPAL COURT OF BOSTON et al., Respondents, Appellees.
• Court: U.S. Court of Appeals — First Circuit

420 F.3d 5

Jorge J. GONZALEZ, Petitioner, Appellant, v. The JUSTICES OF the MUNICIPAL COURT OF BOSTON et al., Respondents, Appellees.

No. 03-2732.

United States Court of Appeals, First Circuit.

Heard June 8, 2004.

Decided August 24, 2005.

Robert W. Hagopian on supplemental brief for appellant.

Thomas F. Reilly, Attorney General, Commonwealth of Massachusetts, and David M. Lieber, Assistant Attorney General, on supplemental brief for appellees.

Before SELYA, Circuit Judge, PORFILIO,^* Senior Circuit Judge, and LYNCH, Circuit Judge.

SELYA, Circuit Judge.

In Gonzalez v. Justices of the Municipal Court, 382 F.3d 1 (1st Cir.2004), we affirmed the district court's denial of petitioner-appellant Jorge J. Gonzalez's request for federal habeas relief from a pending state prosecution. Concluding that an initial proceeding based on the same complaint had not resulted in an acquittal within the cognizance of the Double Jeopardy Clause, we held that the pending prosecution did not compromise the petitioner's right not to be twice put in jeopardy for the same offense. See id. at 10-12. The petitioner repaired to the United States Supreme Court, where he filed a petition for a writ of certiorari. That petition argued, inter alia, that the initial proceeding had terminated in an acquittal and, thus, triggered double jeopardy concerns.

While the certiorari petition was pending, the Court decided Smith v. Massachusetts, ___ U.S. ___, 125 S.Ct. 1129, 160 L.Ed.2d 914 (2005), a case that presented a variant of the question of what constitutes an acquittal for double jeopardy purposes. There, the Justices concluded that the state court's midtrial grant of the defendant's motion for a judgment of acquittal under Mass. R.Crim. P. 25(a) (known colloquially as a required finding of not guilty) was an acquittal within the cognizance of the Double Jeopardy Clause because it had emanated from the trial court's evaluation of the evidence and, accordingly, constituted "a substantive determination that the prosecution ha[d] failed to carry its burden." Id. at 1134.

Shortly thereafter, the Supreme Court granted Gonzalez's petition for certiorari pro forma, vacated our judgment, and remanded the case for consideration in light of Smith. Gonzalez v. Justices of the Mun. Ct., ___ U.S. ___, 125 S.Ct. 1640, 161 L.Ed.2d 474 (2005) (mem.). We directed the parties to file supplemental briefs addressing the effect (if any) of Smith on our prior decision. Having studied the decision in Smith and the parties' submissions, we reinstate our earlier judgment.

Our prior opinion chronicles the factual and procedural background of the case, see Gonzalez, 382 F.3d at 2-5, and it would serve no useful purpose to rehearse those details here. Instead, we assume the reader's familiarity with our original opinion and move directly to the implications of the remand order. We then examine what effect, if any, Smith may have upon the conclusions we reached in Gonzalez.

We are required to revisit this case because of the Supreme Court's use of a procedure known as a "GVR" — an acronym commonly used to describe the steps of granting certiorari, vacating the judgment below, and remanding a case to the lower court for further consideration. See, e.g., Stutson v. United States, 516 U.S. 193, 194, 116 S.Ct. 600, 133 L.Ed.2d 545 (1996); Lawrence v. Chater, 516 U.S. 163, 165-66, 116 S.Ct. 611, 133 L.Ed.2d 545 (1996). In Lawrence, the Court noted that the occasion for a GVR order typically arises "[w]here intervening developments . . . reveal a reasonable probability that the decision below rests upon a premise that the lower court would reject if given the opportunity for further consideration, and where it appears that such a redetermination may determine the ultimate outcome of the litigation." 516 U.S. at 167, 116 S.Ct. 604.

It is important to remember, however, that a GVR order is neither an outright reversal nor an invitation to reverse; it is merely a device that allows a lower court that had rendered its decision without the benefit of an intervening clarification to have an opportunity to reconsider that decision and, if warranted, to revise or correct it. See Pratt v. Philbrook, 109 F.3d 18, 19-20 (1st Cir.1997). The GVR order itself does not constitute a final determination on the merits; it does not even carry precedential weight. See Tyler v. Cain, 533 U.S. 656, 666 n. 6, 121 S.Ct. 2478, 150 L.Ed.2d 632 (2001); Henry v. City of Rock Hill, 376 U.S. 776, 777, 84 S.Ct. 1042, 12 L.Ed.2d 79 (1964); see also Lawrence, 516 U.S. at 178, 116 S.Ct. 604 (Scalia, J., dissenting) (suggesting that the GVR ought to be termed "no fault V & R" because it represents a "vacation of a judgment and remand without any determination of error in the judgment below"). Consequently, we do not treat the Court's GVR order as a thinly-veiled direction to alter our course; rather, the order recognizes — as do we — that the Smith decision is pertinent and requires us to determine whether anything that the Smith Court said demands a different result.

The scope of our reconsideration is limited. As a general rule, "when the Supreme Court remands in a civil case, the court of appeals should confine its ensuing inquiry to matters coming within the specified scope of the remand." Kotler v. Am. Tobacco Co., 981 F.2d 7, 13 (1st Cir.1992). While we retain the power "to reexamine an issue that lies beyond the circumference of the Supreme Court's specific order," the petitioner here has relied solely on the perceived commonalities between his case and Smith in his supplemental brief. There is, therefore, no reason to enlarge the scope of our review beyond the Court's direction to reconsider our original decision in light of Smith.¹

Like Gonzalez, Smith arose from a criminal proceeding in a Massachusetts trial court. The Commonwealth had indicted Smith on three counts, including a charge of unlawful possession of a firearm. A jury trial commenced and, after the prosecution rested, the defendant moved under Mass. R.Crim. P. 25(a) for a required finding of not guilty on the firearms count, arguing that the Commonwealth had not proved an essential element of the offense. Smith, 125 S.Ct. at 1132. At sidebar, the trial judge granted the motion, agreeing that the prosecution had not introduced sufficient evidence to prove that element. Id. at 1132-33. The judge endorsed her ruling on the docket but did not notify the jury of the acquittal on the count in question. Id. at 1133.

Smith then presented a defense to the two remaining charges. After both sides had rested but before closing arguments, the Commonwealth renewed its objection to the judgment of acquittal on the firearms charge and called the judge's attention to a previously unmentioned precedent. Id. The judge, announcing that she was "reversing" her earlier ruling, granted the Commonwealth's request to defer the sufficiency of the evidence determination until after the verdict. Id. The jury proceeded to convict Smith on all three counts and the judge allowed the verdict to stand. Id.

After exhausting avenues of appellate review available in the state courts, Smith sought a writ of certiorari from the United States Supreme Court. He posited that the trial court's grant of the Rule 25(a) motion at sidebar was an acquittal and that its later submission of the firearms count to the jury subjected him to "postacquittal factfinding proceedings going to guilt or innocence" in violation of the Double Jeopardy Clause. See id. at 1134 (quoting Smalis v. Pennsylvania, 476 U.S. 140, 145, 106 S.Ct. 1745, 90 L.Ed.2d 116 (1986)).

The Court granted certiorari and, in a 5-4 decision, reversed Smith's conviction on the firearms charge. The Court's analysis of "whether the judge's initial ruling on petitioner's motion was, in fact, a judgment of acquittal," id., grounds our inquiry. Significantly, the Smith Court did not purport to unsettle the foundations of what constitutes an acquittal for double jeopardy purposes but, rather, relied on the traditional definition, which equates such an acquittal with a disposition that "actually represents a resolution, correct or not, of some or all of the factual elements of the offense charged." Id. (quoting United States v. Martin Linen Supply Co., 430 U.S. 564, 571, 97 S.Ct. 1349, 51 L.Ed.2d 642 (1977)).

The Court rejected the Commonwealth's effort to draw distinctions for double jeopardy purposes based on the characterization of a finding of insufficiency of the evidence as a legal rather than a factual determination and held that a finding that the evidence was insufficient as a matter of law is a resolution of the factual elements of the charge. See id. at 1134-35. It emphasized that "the judge `evaluated the [Commonwealth's] evidence and determined that it was legally insufficient to sustain a conviction.'" Id. at 1135 (alteration in original) (quoting Martin Linen, 430 U.S. at 572, 97 S.Ct. 1349).

Seen in this light, it is readily evident that Smith did not alter the definition of an acquittal previously articulated by the Court in Martin Linen. To the contrary, the Smith Court confirmed that definition. See id. at 1134 (explaining that "a substantive determination that the prosecution has failed to carry its burden," made by the judge pursuant to a procedure for rendering a directed verdict of acquittal, is an acquittal for double jeopardy purposes). There was no serious question in Smith about whether the trial judge had, in the ordinary course of business, entered a judgment of acquittal at sidebar; the perplexing question was whether that acquittal was open to later revision by the trial court. See id. at 1135. The Supreme Court concluded that it was not. Id. at 1137.

We followed the same general approach in Gonzalez. There, we relied on the Martin Linen definition and applied the same language from that case to determine whether the trial court's actions had resulted in what amounted to an...