morning your honour's may please the court i'm edwards asked from the federal defenders for the palin pedro serrano mr serrano a retrial is currently scheduled to begin on aug seventh and the parties are already engaged and in preparation for the retrial we've moved for a stay to ensure that mr serrano does not have to run the gauntlet a second time before this court can decide whether the retrial can proceed under the double jeopardy cla found the evidence sufficient but the district court is not normal he hurry vertical set aside a new trials that's correct that's correct but if the court was wrong if the evidence was insufficient under is reversed without a finding of insufficient evidence why should we use side then the double jeopardy why isn't it appropriate to have the second we have a trial trial if the double jeopardy clause bars the trial it's one of the special rights so this court's practice in wallet and other cases is to review  sufficiency even where there is a determination that there's been trial error that would warrant a new trial that's all we're seeking here to force mr serrano to go to trial and not decide sufficiency until later circuit said that there was no jurisdiction because the double jeopardy claim turned on sufficiency which is not normally reviewable but the supreme court reversed the d c circuit and said d c circuit on that very point and said it doesn't matter that the double jeopardy claim requires review of sufficiency because the defend it was not appealing a judgment based on that evidence he was making a separate claim under double jeopardy it was a case in which  mistrial had been that's right that's right and that's why the defendant lost on the merits but there really are two old ngs in in richardson one is is jurisdictional and one is is on the merits richardson says unless there's been a terminations of the original jeopardy the second trial is not double jeopardy that is what richardson says but it acknowledges burke's holding that a conviction where the evidence is determined to be recognized that the conviction had already been vacated for trial  but the defendant then brought an interlocutory double jeopardy just like our case and judge newman's opinion for the court said that it was appropriate to address sufficiency there to ensure that the defendant's double jeopardy rights are protected i can see i'm a countering some resistance but i think the resistance goes to the merits and this is just this is just this is just to stay and it would be unfortunate if a court were to deny a stay and ultimately on the merits the court which you agree that double jeopardy was violated the government has not identified the sort of irreparable injury that we have identified this right this fundamental right under the under the double jeopardy clause is going to be lost forever if the retrial occurs before the score can couldn't have proceeded on the interlocutory unless jurisdiction was found to exist the court addressed the double jeopardy claim results efficiency so it has been pressed the second point is this is this is pretty unusual it's unusual to get a rule thirty three new trial granted in the first place and often when a real true thirty three trial a new trial is granted the court will also agree that the evidence was insufficient so that that that doesn't result in an appeal also the courts and the court will often agree that the evidence was insufficient defendants typically make to prostrate emotions woods make those machines yes the district court finds that the evidence was insufficient so they are typically decided together normally there both are not and in essence you ation the government's quite right the defendant has to wait to a final judgment here the real question the real merits question is what appeal  right to appeal if any does a defendant get when a court grants a rule thirty three motion but denies the rule twenty nine bush and we think under richardson and wallet the court the court's practice the court's precedent to review sufficiency before subjecting the defendant to a second trial and so therefore we're just asking the court to stay the proceedings in the district court until this court has an opportunity to address these important substantial non frivolous questions and why exactly would this panel be unable to address the substantial question i'm sorry i didn't hear your question  decide substantial question well this is state panel that the issue before the court is is a narrow it is whether there's any colorable claim here i think it would be premature until there is full briefing and at the discretion of the court argument to jump forward and resolve these questions on the merits there is not only the substantial double jeopardy ases previous question that one reason why this has not come up is very often the sufficiency question is we view lino of frivolous enough so that when vis kind of motion gets made it gets decided on the merits and be gotten rid of the inventor of course where is no double jeopardy issue you're saying here the same reason that keeps us from deciding it now because it is complicated and not something that should be done without full briefing is be a reason why this hasn't come up often yes that's exactly right i think the fact that it hasn't come off often come up that often is is is a counter to the government's claim that if you if the court merits panel decides the double jeopardy question addresses efficiency that somehow the court's going to be inundated with these cases well it was decided twenty five years ago and there's been no evidence of a flood of cases like this is unusual and we just think that that both for efficiency reasons and for fundamental fairness reasons  the court should not allow the government to retry mr serrano until the court can decide whether it can retry mr serrano thank you will rest on her papers and respect my name is david denton an assistant united states attorney in the southern district of new york i represent the united states on this appeal and in the proceedings below having successfully moved for a new trial in the district court the defendant now makes the frivolous claim that violates the double jeopardy clause to give him the new trial that he asked for the defendant is not being subject to double jeopardy he is instead at his own request being put in the position as if the first trial had never occurred in this like oh no your honor it's decidedly different from all there was a final judgment sentence was imposed and there was a properly taken appeal during which the defendant raised questions about the sufficiency of the evidence for reasons that are somewhat unclear the original merits panel that considered that case did not explicitly rule on his sufficiency challenge and so when it was raised in the context of the appeal from his double jeopardy motion the panel decided that it was appropriate to follow this court's prudential rule on properly taken appeals from final judgment and consider the sufficiency that this case concerns a purely interlocutory appeal at the defendant's request no final judgment has ever been enter and that's significant for the double jeopardy question here because at the end of a trial a defendant is faced with a choice he either can proceed immediately to sentence in judgment and then he can appeal to this court on the merits including sufficiency or he can move in the district court and try and get prompt or relief they're part of the reason why rule thirty three requires it granted there was an error in the court's instructions with respect to conscious avoidance that oh no there was an error which did not  exactly but he also did and the district court ruled against him on that that's correct and that's one question that he would like to see you sober was a judgement in his favor around i think the relevant case is for the center not wallach which clearly holds that a denial of a rule twenty nine motion when accompanied with the grant of a rule thirty three motion is not immediately appeal and so the question here is whether the he did not raise double jeopardy and if somebody doesn't raise an issue we don't do side so i take it that ferguson who it came out the way you want did so because we don't decide issues that aren't raised to support the defendant in ferguson didn't say you were retrying me before you decided this as you said you should do all of so you know we may decide your way but i it's a double jeopardy claim that is then necessarily immediately appealable or even a colorable question so for example in apne the supreme court cautioned that the exception to the final judgment rule for double jeopardy purposes was intended to ensure direct appeals are to me immediate appeals of true double jeopardy clean's that it was not a way to simply invoke the double jeopardy clause that and this is a true double jeopardy claim but if somebody makes and i'm not saying they have but if somebody has a serious complicated sufficiency vs britain's issue then why wouldn't a stay be appropriate in order to protect the person to be tried twice now i'm not i don't know of it that is still here but it seems to me that a blanket rule that says no would would cause exactly would judge norman worried about to come up i think there's two problems again first of all there's the extent to which wallop arose in a different circumstance where the defendant had a right to have his sufficiency considered and for some itself but i think that the relevant question of which claim is frivolous is not is not the merits of the sufficiency claim the relevant question is the lack of a colorable double jeopardy claim because jeopardy has not terminated here there is in fact another aspect to richardson's holding which does not establish a rule that all double jeopardy claims considering sufficiency can properly be heard the supreme court heard th appeal for purpose of denying it and noted that no such claims would be considered colorable going forward and that there would be no need to interpose an interlocutory appeal in a situation where there is no identifiable event terminating jeopardy there is no such event in this case and so there is no colorable claim of double jeopardy for this court to entertain you or of any other court of sustained or opted was to say as argument not since richardson honor there is one case that they cite that predates that but we think richardson's rule clearly abrogates that as it did other cases permitting similar interlocutory appeals for mistrials an just very quickly on the last point your honor i think the relevant question is not necessarily whether other courts outside the circuit have have but have adopted or not adopted our position the question is is there some controlling case either from the supreme court or from the circuit that says a defendant is not entitled to pursue a double jeopardy claim at this stage based on insufficiency of the evidence where the conviction was already he's still leaves the question of whether jeopardy a completed in vienna after all the talk the main argument of the government is this is different because the first case as not ended and what's your answer to that well the entire argument depends on the correctness of the of the district court sufficiency really if the district court was wrong if our client was convicted based on insufficient evidence and the and that this court were to agree with that assessment that under perks under richardson itself is a double jeopardy terminating a vent i think if you pursue the government's logic you'll see that it can't be right this court whenever it reviews appeals after final judgments sometimes says you know this trial was unfair we need to order a new trial but it doesn't stop there and ignore the sufficiency claim if the government were right the judge you ok jeopardy didn't terminate because we're ordering a new trial the court would not review sufficiency claims but it but it always does because it recognizes that it would be unfair not to now it's true that those cases generally come up after final judgments but here we have a final decision under apne this ruling is a final decision it is immediately appealable and the supreme court in richardson expressly rejected the same argument the government is making that somehow it's not really a double jeopardy claim because it turns on sufficiency the supreme court reversed the d c circuits holding to that effect and said no it's still an appealable double jeopardy ruling even low it requires the court to canvass the sufficiency of the evidence at the first trial the real difficult substantial question at the end of the day is just richardson applause not where a jury couldn't reach a verdict which is the issue there but unresolved questions and it's the kind of question that should be resolved by the merits panel after a full briefing and if the court agrees with the government future appeals may well be be frivolous but until there's a ruling on the merits until there is a ruling there is a chance that we would prevail and that's all we need to show here and therefore i think the court should err on the side of granting the stay so that our client doesn't suffer that