appealed his conviction to the district court which reversed and in this appeal the united states assigns error to the district court's ruling i'd like to cover the body of evidence which the government presented to the magistrate court explain why the the same the scope of review is the same as if it had been a trial in the district court appeal to this court and that's where the era lies actually in this case the government presented a great deal of evidence indicating that the defendant had been driving under the influence of alcohol to a degree which prevented him from driving the vehicle safely he was pulled over for doing seventy miles per hour in a forty five mile per hour speed zone and  when confronted with that fact stated that he failed to realize how fast he was traveling when he exit the car the ranger who pulled him over observed he had a strong odor of alcoholic beverages about him he admitted that he had been drinking  and in addition to having difficulty walking he failed a field sobriety tests his eyes were bloodshot and watery his speech was noticeably slow and deliberate and after he had been mirand d in addition to explaining that he had been drinking he stated that he felt as he had that he had felt more buzzed at the time he was pulled over in this testimony he explained that he had gone to a wine tasting event which began approximately six fifteen that evening continue drinking until a point in time at approximately eight or eight thirty then had another drink at a different establishment at nine o'clock and was pulled over at nine forty  this he says when i read it after reviewing the evidence in the light most favorable of the prosecution no rational trier of fact could have found the essential elements of count one beyond a reasonable doubt under the circumstances what is the test we deal with i'm familiar with the taylor case and the double jeopardy issue but i'd be interested in this from the government's perspective when when evidence what impact if any does that have on the double jeopardy issue well i guess i should answer that few different ways first your honor all the district court recited the correct standard review he did not in fact  and then hypothesized innocent explanations for them for example when discussing the defendant's watery and bloodshot eyes he hypothesized that perhaps the defendant had been up late the night to the defendant's failure of the one leg stand test which is one of the field sobriety tests he observed that some people have for balance and perhaps could not pass that test regardless whether those so what you're saying is that instead of the reviewing for substantial evidence he just basically explained away the evidence that the magistrate judge had found persuasive correct but the language that he used is a little troubling to me because of the fact that he says in the light most favorable no rational trier of fact could have found the essential elements of the crime i must confess i was troubled in reading the transcript  i had some real difficulty understand the district court could get where it got but on the other hand we do have an issue here if no rational trier of fact could have found that doesn't that raise a no facts at all that anybody could find it that way it seems to me you get very close to the line there immediately the district court was supposed to be reviewing it as a court of appeal but i just want to your  take on that all well i guess i have two responses and one but for the error in that assessment i think you would be right there would be a double jeopardy implication if that evidence having supported it and there were in fact an insufficiency then the government would have failed in its proof and double jeopardy would be implicated if this court grants the relief the government requests the defendant will not be tried again so there won't be any double jeopardy violation and course a number say that as well with respect to the jurisdictional attack i guess i'd only offer a couple of observations the government's appeal is under title eighteen section thirty seven thirty one which says that the government can appeal from the dismissal of an indictment or information and as fantasy counsel correctly observes strictly speaking that is not what we have here we don't have the dismissal of an indictment or any information but the united states supreme court has already addressed that point conclusively in martin lynn and supply and in wilson stating that the form of the district court's ruling is not dispositive wilson also eliminates all statutory barriers to the government's appeal the which in this case is the evidence the government presented such as inability to walk without difficulty failure of field sobriety tests traveling seventy miles per hour in a forty five mile per hour zone do we get to do we get to consider the  and i had been assigned to both thank you very much  point out is that i don't believe the court has any jurisdiction in this particular case because under the appellate statute this is not an information this is not an indictment this is a complaint and i don't believe that we should use like one of the circuits as a functional argument and that is to say i think you raise a very very troubling point for us but what do we do with two supreme court cases that are now thirty years old almost thirty years old that tell us that the only constraint on our on our on our college or sixth in this case is the double jeopardy clause your honor that's that's really not the situation here what the government did they cited martin late and and but they didn't give you the complete side martin lynn said that the if the government has a right to have an appeal wilton found that in acting section thirty seven thirty one congress intended to remove all statutory barriers to government appeals and to allow appeals whenever the constitution would permit therefore and now the court is now no lo seven thirty one if you if you take the position that the government can appeal anything so long as it's not in violation of the constitution then you make in all the other thirty seven well pretty well i do that and wonder if by the way you've got a ninth circuit case here that also  five that's after martin lynn and that makes it very clear it's got to fall within one of the expressed concerns are there with the language which case you're referring to what if i cited that for you as well as the ninth circuit case and says that it has to fall acknowledged just as you have argued that the plaintext reading of that statute would not allow an appeal in this case but that in light of the storm supreme court statements that they were obligated to allow those cases we will have to go to conflict with three other circuits with decisions that have been sitting there for twenty five years in the congress has not taken any action to correct it really think there's a conflict as i think what they're saying is is that you have a right to appeal if there is to express language ok if there is no expression in which you don't have a right to appeal if there's an express that's it's very clear counsel can i can i ask her point of it's only me that was my one issue yesterday i can ask for a point of clarification i'm looking at thirty six thirty seven thirty one and it says here in the criminal case on appeal by the united states shall live to a court of appeals from a decision judgment or order of a district court dismissing an indictment or information doesn't mention the complaint is that your point that's my point your honor it doesn't say the complaint and we know the complaints are for lesser offenses and clearly if the congress wanted to include a complaint they certainly should have done so now you can do like some of the other circuits which i find appalling as a lawyer and say well it's a functionally equivalent it doesn't really say that but also the other issue is fears the double jeopardy issue we've got a situation here where judge mayhem found that no rational fire fact could find proof beyond a reasonable doubt my client was acquitted he entered acquittal and now the something that double jeopardy clause does not answer and that kind of a case and i believe in this particular case that it that it did it should the government shouldn't have a right to have two appeals the judge if any way be considered valid in this case the p b t is invalid there wasn't even any basis to arrest and that's why judge made them based upon all the contradictions and and again if you want to go through these contradictions i'll go through but the for example the stranger well i sigh when i first obs like mile marker one and then another document was first observed in mile marker one five and then when i stopped them it was mile marker to know that i stop them on one five ok we established where the stop took place it was a two point one mile marker and w and again if the records fully shows that the deciding factor to to find my client guilty ok of the charges because he was speeding and i fly out of my client vehemently disputes that he was doing but that's what the officer testified to your client testified that he that he typically did speed through this area but the usual one ten dollars an hour right which would have been put at at fifty to fifty five so he's by his own admission bad if you credit me at the officer he's fifteen miles above the way he tripped typically drives in that area and i don't think that's that's a distinction with a difference here because the point being is if someone's going seven is that mean that they're under the influence you have to look at all the evidence in this particular case on my last my on on my last page of of my brief i point out all the things you know that my client did appropriately my client wasn't incapable safely operate in to be able this stranger one of the particular alcohol level and then based upon this record be found guilty of being under the influence so judge mayhem was all it was correct in his decision there is there is not sufficient evidence to to warrant a conviction in this particular case and again i don't believe that the government has even a right to be here on the appeal as they did they admit in their their opening brief  counsel's making now are impeachment arguments which he made very ably before the trial or fact but it's the trier facts duty to weigh those arguments and to resolve the conflicts in the evidence that was done and it was done rationally and for that