U.S. v. Gutierrez-Zamarano, GUTIERREZ-ZAMARAN

• Citation: 23 F.3d 235
• Decision Date: 04 April 1994
• Docket Number: No. 93-50389,D,GUTIERREZ-ZAMARAN,93-50389
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Hector Gerardoefendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 235

23 F.3d 235

UNITED STATES of America, Plaintiff-Appellee, v. Hector Gerardo GUTIERREZ-ZAMARANO, Defendant-Appellant.

No. 93-50389.

United States Court of Appeals, Ninth Circuit.

Submitted April 4, 1994 ^*

Decided April 26, 1994.

Eugene G. Iredale, San Diego, CA, for defendant-appellant.

David P. Curnow, Asst. U.S. Atty., San Diego, CA, for plaintiff-appellee.

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

Before: HALL, LEAVY, and FERNANDEZ, Circuit Judges.

Opinion by Judge CYNTHIA HOLCOLM HALL.

CYNTHIA HOLCOLM HALL, Circuit Judge:

Appellant Hector Gutierrez-Zamarano ("Appellant") was charged with conspiracy to possess cocaine with the intent to distribute and attempted possession of cocaine with the intent to distribute in violation of 21 U.S.C. Secs. 841(a)(1) and 846. A jury acquitted Appellant on the conspiracy count, but convicted him on the attempt count. The district court granted Appellant's motion for a new trial. Appellant made pre-trial motions to dismiss the attempt count on the grounds of double jeopardy and collateral estoppel. ¹ In addition to arguing that the district court erred in denying these motions, Appellant contends that retrial is barred because he established entrapment as a matter of law at trial.

The district court had jurisdiction pursuant to 18 U.S.C. Sec. 3231. We have jurisdiction over the interlocutory appeal of Appellant's double jeopardy claim pursuant to 28 U.S.C. Sec. 1291, see Abney v. United States, 431 U.S. 651, 662, 97 S.Ct. 2034, 2041-42, 52 L.Ed.2d 651 (1977), and we affirm. We lack jurisdiction over Appellant's entrapment

claim and therefore dismiss this portion of the appeal.

I.

In March 1991, Agent Skaggs of the Drug Enforcement Agency ("D.E.A.") met informant Lopez, who stated that Appellant Gutierrez-Zamarano was a member of a cocaine smuggling operation. Lopez told Appellant that Agent Skaggs was interested in purchasing cocaine. Appellant maintained at trial that he and Lopez planned to steal money from the government, as opposed to actually completing a drug transaction.

On May 21, 1991, Appellant flew to California on a ticket purchased by the D.E.A. and met Agent Skaggs. During this videotaped meeting, Appellant stated he could deliver 60 kilograms at a time for a price of $22,000 per kilogram. Appellant refused to provide a drug sample and no final agreement was made. During a later conversation, Appellant stated he was working with individuals from a large drug trafficking operation known as the Barrientos organization. ²

On February 15, 1992, Appellant again flew to San Diego at D.E.A. expense for another meeting with Agent Skaggs. The discussions included delivery of 100 kilograms at $17,000 per kilogram, with a down payment of twenty percent. Appellant again refused to provide a cocaine sample and the deal was not finalized.

On March 8, 1992, Appellant returned to San Diego at his own expense and met with Agent Skaggs at a hotel room. During this videotaped meeting, the two men discussed: 1) the price; 2) the method of delivery; 3) the refining process; and 4) members of Appellant's South American drug organization. Agent Skaggs also brought a suitcase containing $310,000 as a down payment for 100 kilograms of cocaine which was to be provided later. Appellant was arrested after picking up the suitcase, shaking hands with Agent Skaggs and leaving the hotel room.

Appellant was charged with conspiracy to possess cocaine with the intent to distribute and attempted possession of cocaine with the intent to distribute in violation of 21 U.S.C. Secs. 841(a)(1) and 846. A jury acquitted Appellant on the conspiracy count, but convicted him on the attempt count.

On December 15, 1992, Appellant made post-trial motions for acquittal based on insufficient evidence, or alternatively for a new trial based on the court's failure to give an entrapment jury instruction. The district court denied the motion for acquittal but granted the motion for a new trial and vacated Appellant's conviction. Appellant did not appeal these rulings.

On February 17, 1993, Appellant made pre-trial motions to dismiss the attempt count on double jeopardy grounds, and alternatively to exclude evidence on collateral estoppel grounds. The district court denied these motions and this timely appeal followed.

II.

Whether a defendant's double jeopardy rights have been violated is a question of law reviewed de novo. United States v. Horodner, 993 F.2d 191, 193 (9th Cir.1993). The district court's denial of a motion to dismiss on double jeopardy grounds is reviewed de novo. United States v. Lun, 944 F.2d 642, 644 (9th Cir.1991). Factual findings regarding the government's conduct are reviewed for clear error. Id.

III.

Appellant argues that there was insufficient evidence at the first trial to support the attempt count and thus the Double Jeopardy Clause precludes retrial on this count. ³ The government contends that Appellant The Double Jeopardy Clause "does not preclude the Government's retrying a defendant whose conviction is set aside because of an error in the proceedings leading to conviction...." United States v. Tateo, 377 U.S. 463, 465, 84 S.Ct. 1587, 1588, 12 L.Ed.2d 448 (1964). Rather, "the protection of the Double Jeopardy Clause by its terms applies only if there has been some event, such as an acquittal, which terminates the original jeopardy." Richardson, 468 U.S. at 325, 104 S.Ct. at 3082. A determination by the trial court that the evidence was insufficient as a matter of law, see Smalis v. Pennsylvania, 476 U.S. 140, 144, 106 S.Ct. 1745, 1748, 90 L.Ed.2d 116 (1986), or a similar determination by a reviewing court, see Burks v. United States, 437 U.S. 1, 18, 98 S.Ct. 2141, 2150, 57 L.Ed.2d 1 (1978), also bars a second trial.

                cannot raise insufficiency of the evidence in an interlocutory appeal. 4  We find that Appellant's retrial will not violate the Double Jeopardy Clause regardless of the sufficiency of the evidence at the first trial
                

Here, there has been no event terminating Appellant's original jeopardy. Appellant certainly has not been acquitted. The jury convicted him on the attempt count and the district court found the evidence supporting this conviction sufficient when it denied his post-trial motion for acquittal. The district court's denial of Appellant's pre-trial motion for dismissal also fails to terminate jeopardy. Appellant is thus faced with the unreversed determination by the jury that the prosecution has met its burden of proof. See Justices of Boston Municipal Court v. Lydon, 466 U.S. 294, 309, 104 S.Ct. 1805, 1813-14, 80 L.Ed.2d 311 (1984). There also has not been an appellate ruling that insufficient evidence at trial supports Appellant's conviction and thus the Supreme Court's decision in Burks v. United States, 437 U.S. at 18, 98 S.Ct. at 2150-51 (holding that where an appellate court has set aside a conviction solely because of insufficient evidence, forcing a defendant to stand retrial would violate the Double Jeopardy Clause), does not apply.

Several courts have declined to review the sufficiency of the evidence on facts very similar to those presented on the instant appeal. In United States v. Wood, 958 F.2d 963, 970 (10th Cir.1992), the Tenth Circuit stated "A guilty verdict by a jury which is set aside by the district court on a motion by the defendant does not terminate jeopardy.". Based on this finding, the court held that the defendant's retrial did not violate double jeopardy regardless of the sufficiency of the evidence. Id. at 971. See also Richardson, 468 U.S. at 325, 104 S.Ct. at 3086 (refusing to review sufficiency of the evidence after finding that a district court's declaration of a mistrial due to a hung jury did not terminate defendant's original jeopardy); United States v. Porter, 807 F.2d 21, 24 (1st Cir.1986) (holding that "where a conviction has been reversed due to trial error and a new trial ordered, and where, after remand, defendant raises a double jeopardy claim to bar his retrial,...