874 F.2d 1441 (11th Cir. 1989), 88-5319, United States v. Torkington

Docket Nº:88-5319.
Citation:874 F.2d 1441
Party Name:11 U.S.P.Q.2d 1871 UNITED STATES of America, Plaintiff-Appellant, v. John TORKINGTON, Defendant-Appellee.
Case Date:June 07, 1989
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit
 
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874 F.2d 1441 (11th Cir. 1989)

11 U.S.P.Q.2d 1871

UNITED STATES of America, Plaintiff-Appellant,

v.

John TORKINGTON, Defendant-Appellee.

No. 88-5319.

United States Court of Appeals, Eleventh Circuit

June 7, 1989

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Dexter Lehtinen, U.S. Atty., Miami, Fla., Thomas O'Malley, Linda Collins Hertz, Asst. U.S. Attys., Ft. Lauderdale, Fla., for plaintiff-appellant.

Richard I. Bellis, Ft. Lauderdale, Fla., for defendant-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before TJOFLAT and JOHNSON, Circuit Judges, and BROWN [*], Senior Circuit Judge.

PER CURIAM:

This appeal arises from the district court's grant of defendant's motion for entry of judgment of acquittal under Fed.R.Crim.P. 29 on charges that defendant trafficked and attempted to traffic in counterfeit Rolex watches in violation of 18 U.S.C.A. Sec. 2320(a). We reverse and remand with the direction that the case be reassigned to a different district judge.

I. FACTS

In 1985, attorneys for Rolex Watch, U.S.A., filed a civil action in the Southern District of Florida alleging that merchants at the Thunderbird Flea Market in Fort Lauderdale, Florida, were selling counterfeit Rolex watches. The district court issued a temporary restraining order and an order authorizing Rolex Watch to seize counterfeit watches at the flea market. On June 23, 1985, five individuals, a lawyer and an investigator for Rolex Watch, two United States Marshals, and a Secret Service Agent, approached a booth at the flea market manned by Torkington, his wife, and a repairman. The attorney read the seizure order to those present in the booth. Torkington directed the individuals to the watches identified in the seizure order and admitted he had been selling them. During the search, Torkington explained that he had purchased the watches for $20 to $25 apiece and sold them for between $30 and $35.

The indictment in this case was filed October 3, 1985, several months after the seizure of the counterfeit watches. On February 10, 1986, the district court dismissed the indictment with prejudice based on the conclusion that a false Rolex watch is not counterfeit as a matter of law within the meaning of 18 U.S.C.A. Sec. 2320(d)(1). This Court reversed. United States v. Torkington, 812 F.2d 1347 (11th Cir.1987).

The case went to trial on February 29, 1988. Immediately before the attorneys for the government gave their opening statements, the district court granted defendant's motion to suppress all statements defendant made at the June 23, 1985, seizure of the counterfeit watches. The district court further ordered all witnesses to refrain from mentioning the prior civil enforcement action. During the presentation of the government's case, a prosecution witness referred to the prior civil enforcement action. Defense counsel immediately objected and moved for a mistrial. The district court asked defense counsel if this was a motion brought under Fed.R.Crim.P. 29. When defense counsel asserted that it was, the district court granted the motion and dismissed the case with prejudice. The court subsequently entered a written judgment of acquittal.

The government raises three issues on appeal. First, the government argues that the district court erred in granting defendant's motion for entry of judgment of acquittal; second, the government challenges the district court's evidentiary rulings; and third, the government argues

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that the case should be reassigned to a different district judge on remand. The first issue we address is whether this Court has jurisdiction to entertain this appeal.

II. DISCUSSION

A. Jurisdiction

This Court has jurisdiction under 18 U.S.C.A. Sec. 3731 to review adverse decisions in criminal cases to the extent not prohibited by the Double Jeopardy Clause of the Fifth Amendment. United States v. Wilson, 420 U.S. 332, 337, 95 S.Ct. 1013, 1018-19, 43 L.Ed.2d 232 (1975). In general, a judgment by the district court that the evidence is insufficient to sustain a guilty verdict constitutes an acquittal, and the Double Jeopardy Clause bars appeal and retrial by the prosecutor. Smalis v. Pennsylvania, 476 U.S. 140, 106 S.Ct. 1745, 90 L.Ed.2d 116 (1986). That bar applies, however, only where the judgment represents a ruling on the merits of "some or all of the factual elements of the offense charged." United States v. Martin Linen Supply Co., 430 U.S. 564, 571, 97 S.Ct. 1349, 1354, 51 L.Ed.2d 642 (1977). If so, regardless of whether the district court erred, the Double Jeopardy Clause of the Fifth Amendment bars appeal and retrial. If not, however, this Court has jurisdiction to entertain the government's appeal even if reversal would require further factual inquiry into guilt or innocence. See generally United States v. Scott, 437 U.S. 82, 97, 98 S.Ct. 2187, 2197, 57 L.Ed.2d 65 (1978) (discussing Fed.R.Crim.P. 29(c)).

The district court in this case stated that it was granting defendant's motion for entry of judgment of acquittal, and characterized its order as issued under Fed.R.Crim.P. 29. Regardless of how the district court styled its order, however, it is clear that the court did not base its decision on the resolution of any of the factual elements necessary for conviction. This Court had already decided that the district court could not dismiss the indictment in this case for failure to allege an offense, United States v. Torkington, 812 F.2d at 1354-55, and the government had barely begun to present its evidence. We conclude that the Double Jeopardy Clause does not bar appeal and retrial in this case.

The government argues that the district court actually granted a mistrial and that this Court should remand the case for a new trial. In general, the Double Jeopardy Clause does not bar retrial after the grant of a mistrial on defendant's motion. If the defendant was compelled by the prosecution's actions to move for a mistrial, however, the Double Jeopardy Clause does bar retrial. See generally United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976). A defendant is compelled to move for a mistrial for Double Jeopardy Clause purposes if the prosecution intentionally took action designed to result in the defendant's mistrial motion. Oregon v. Kennedy, 456 U.S. 667, 675-76, 102 S.Ct. 2083, 2089-90, 72 L.Ed.2d 416 (1982). There is no allegation in this case that the prosecution intentionally goaded the defendant into moving for a mistrial. See id. at 676, 102 S.Ct. at 2089 ("Only where the governmental conduct in question is intended to 'goad' the defendant into moving for a mistrial may a defendant raise the bar of double jeopardy to a second trial after having succeeded in aborting the first on his own motion."). However the district court's order is characterized, then, this Court has jurisdiction to entertain the government's appeal under section 3731.

B. Fed.R.Crim.P. 29

The district court entered judgment of acquittal under Fed.R.Crim.P. 29(a) and dismissed this criminal prosecution. Rule 29(a) provides in pertinent part: "The court on motion of a defendant or of its own motion shall order the entry of judgment of acquittal of one or more offenses charged in the indictment or information after the evidence on either side is closed if the evidence is insufficient to sustain a conviction of such offense or offenses." (emphasis added) Rule 29(a) by its express terms includes two requirements. First, the motion can be granted only after the prosecution has presented its case. Second, the court must find the evidence insufficient to support a conviction. Neither of

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these requirements is satisfied in this case. The district court granted the motion at the beginning of the prosecution's presentation of evidence, and the court granted the motion based on prosecutorial misconduct 1 rather than on insufficiency of the evidence. We hold that the district court erred in granting defendant's motion for entry of judgment of acquittal under Rule 29.

C. Evidentiary Rulings

The district court...

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