U.S. v. Gonzales, 78-2339

• Court: U.S. Court of Appeals — Ninth Circuit
• Writing for the Court: Before GOODWIN and SNEED; PER CURIAM
• Citation: U.S. v. Gonzales, 617 F.2d 1358 (9th Cir. 1980)
• Decision Date: 04 April 1980
• Docket Number: No. 78-2339,78-2339
• Parties: UNITED STATES of America, Plaintiff-Appellant, v. Jose Luis GONZALES et al., Defendants-Appellees.

Page 1358

617 F.2d 1358

UNITED STATES of America, Plaintiff-Appellant, v. Jose Luis GONZALES et al., Defendants-Appellees.

No. 78-2339.

United States Court of Appeals Ninth Circuit.

April 4, 1980.

Rehearing Denied May 12, 1980.

Philip J. McAleer, Asst. U. S. Atty., Los Angeles, Cal., for plaintiff-appellant.

David Elson, Joseph Shemaria, Los Angeles, Cal., Leslie Abramson, Beverly Hills, Cal., Howard W. Gillingham, Los Angeles, Cal., Edwin S. Saul, Encino, Cal., for defendants-appellees.

Appeal from the United States District Court for the Central District of California.

Before GOODWIN and SNEED, Circuit Judges, and JAMESON, ^* District Judge.

PER CURIAM.

The government appeals from a district court judgment of acquittal and the dismissal of an indictment which charged the defendants with eight counts of violating the immigration laws of the United States. We reject appellees' contention that the government's appeal is barred by the double jeopardy clause of the Fifth Amendment and remand the case for further proceedings.

I. Factual Background

On March 31, 1978, nine individuals were indicted for violating the immigration laws of the United States. Count One of the Indictment charged all defendants with conspiracy to transport illegal aliens across the Mexican border into southern Arizona and thence to Los Angeles. Counts Two through Eight charged individual defendants with separate acts of harboring or transporting illegal aliens, and with aiding and abetting these offenses.

On April 4, 1978, the district court designated as material witnesses twelve illegal aliens who had been arrested with certain defendants and ordered them held on $5,000 corporate surety bonds. Three other illegal aliens had already been designated as material witnesses by a magistrate and ordered held on similar bonds. The trial judge ordered all counsel to interview the material witnesses by April 10, 1978, and to file statements with the court concerning retention of the material witnesses for trial. Statements were filed by all parties and all material witnesses were requested held for trial.

Before trial, motions to dismiss the indictment were made on the grounds that defendants had been deprived of their constitutional rights to compulsory process and due process by the failure of the government to retain other aliens as material witnesses, particularly the government's alleged failure to retain one individual whom the government had agreed to hold. After a three day hearing, the motions were denied on the basis that there had been no governmental misconduct and the production by the government of the witness in court before trial had rendered the motions moot.

The jury was then empaneled and the trial commenced. For three days the government presented the testimony of seven witnesses. On the fourth day of trial, the government informed the court that it had learned that two other illegal aliens, who had been arrested with the defendants, had not been made available to defense counsel, and had been released by the government through agents of the Immigration and Naturalization Service. One had been allowed to return voluntarily to Mexico in lieu of deportation and the other had been released in Los Angeles.

The trial was suspended and a hearing was held. The government produced one of the "missing" witnesses at that hearing. The defendants moved to dismiss the indictment on the basis of United States v. Mendez-Rodriquez, 450 F.2d 1 (9th Cir. 1971) and United States v. Tsutagawa, 500 F.2d 420 (9th Cir. 1974). The court granted the motion, and suggested that defendants also move, which they promptly did, for a judgment of acquittal. The order was stayed for two days at the government's request. The following day the government moved to vacate the dismissal order on the ground that it could produce the other witness. On the same day the district court filed its written judgment of acquittal and dismissal.

The next day the district court heard and denied the government's motion to vacate. The government had produced both witnesses and contended that their presence rendered moot the Mendez-Rodriquez issue. Immediately after the denial of the motion to vacate, the government filed an emergency petition for a writ of mandamus in this court. The petition was denied, but the dismissal was stayed for four days. At the expiration of that period, the district court lifted the stay, entered the judgment of acquittal and dismissal, discharged the jury and released the defendants.

The government asserts that the acquittal was one in form only, and thus appeal is not barred by the double jeopardy clause of the Fifth Amendment. It also contends that the district court erred in granting the motions to dismiss the indictment. We address first appellee's arguments respecting double jeopardy and thereafter consider, as our holding respecting double jeopardy requires, whether the dismissal, which we treat as one with prejudice, was proper.

II. Double Jeopardy

The Criminal Appeals Act, 18 U.S.C. § 3731, provides, in pertinent part:

"In a criminal case an appeal by the United States shall lie to a court of appeals from a decision, judgment, or order of a district court dismissing an indictment or information as to any one or more counts, except that no appeal shall lie where the double jeopardy clause of the United States Constitution prohibits further prosecution." ¹

Appellees contend that double jeopardy bars this appeal, arguing that jeopardy attaches when the jury is empaneled and sworn. Crist v. Bretz, 437 U.S. 28, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978). It is true that the double jeopardy clause is concerned with avoiding multiple prosecutions even where guilt or innocence has not been established. United States v. Scott, 437 U.S. 82, 92, 98 S.Ct. 2187, 2194, 57 L.Ed.2d 65 (1978). It also has been stated that perhaps the most fundamental rule in the history of double jeopardy jurisprudence is that a judgment of acquittal may not be appealed by the government without putting a defendant twice in jeopardy. United States v. Martin Linen Supply Co., 430 U.S. 564, 571, 97 S.Ct. 1349, 1354, 51 L.Ed.2d 642 (1977). This remains true even if a judgment of acquittal was entered for erroneous reasons. Sanabria v. United States, 437 U.S. 54, 98 S.Ct. 2170, 57 L.Ed.2d 43 (1978); Fong Foo v. United States, 369 U.S. 141, 82 S.Ct. 671, 7 L.Ed.2d 639 (1962).

The Supreme Court, while reviewing its earlier decisions regarding double jeopardy, recently has reiterated that a "trial judge's characterization of his own action cannot control the classification of the action." United States v. Scott, 437 U.S. 82, 96, 98 S.Ct. 2187, 2196, 57 L.Ed.2d 65 (1978), citing United States v. Jorn, 400 U.S. 470, 478 n. 7, 91 S.Ct. 547, 553, 27 L.Ed.2d 543 (1971), citing United States v. Sisson, 399 U.S. 267, 290, 90 S.Ct. 2117, 2129, 26 L.Ed.2d 608 (1970). See also United States v. Martin Linen Supply Co., 430 U.S. at 571, 97 S.Ct. at 1354; United States v. Wilson, 420 U.S. 332, 336, 95 S.Ct. 1013, 1018, 43 L.Ed.2d 232 (1975). Justice Rehnquist, writing for the majority in Scott, concluded that: * * * "(A) defendant is acquitted only when 'the ruling of the judge, whatever its label, actually represents a resolution (in the defendant's favor), correct or not, of some or all of the factual elements of the offense charged.' Martin Linen, supra, at 571, 97 S.Ct. (1349). Where the court, before the jury returns a verdict, enters a judgment of acquittal pursuant to Fed.Rule Crim.Proc. 29, appeal will be barred only when 'it is plain that the District Court . . . evaluated the Government's evidence and determined that it was legally insufficient to sustain a conviction.' 430 U.S., at 572 (97 S.Ct. 1349)." 437 U.S. at 97, 98 S.Ct. at 2196, 2197. (Footnote omitted.)

Federal Rule of Criminal Procedure 29 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."

The government asserts that, not only does the record demonstrate that the district court did not consider the sufficiency of the evidence before it, it could not have considered whether the evidence was sufficient because it ruled in the middle of the government's case, thus failing to comply with Rule 29.

Although there is a reference in the district court's judgment to the evidence adduced by the government during the three days of trial, the record does not plainly demonstrate that the district court evaluated the government's evidence and determined that it was legally insufficient to sustain a conviction. United States v. Scott, 437 U.S. at 97, 98 S.Ct. at 2197. Rather, the record before us clearly demonstrates that the order was based on constitutional grounds arising from the unavailability of potential material witnesses. See United States v. Appawoo, 553 F.2d 1242 (10th Cir. 1977). The acquittal therefore was in substance an order of dismissal, and as such is appealable. ² United States v. Scott, supra.

III. Dismissal With Prejudice

In United States v. Mendez-Rodriquez, 450 F.2d 1 (9th Cir. 1971), this court reversed convictions for conspiracy to transport and transportation of illegal aliens because the government's deportation of eyewitnesses to the alleged offenses, without first allowing the defendant to examine those witnesses violated due process. Relying on Mendez-Rodriquez, the district court here dismissed all counts of the indictment against all defendants because two witnesses, Avila and Rivera, were unavailable to the defense before trial.

The government challenges the trial court's action primarily on three grounds. First, if Avila was unavailable to the defense before trial, that unavailability was not due to government...