Judge Henley died on October 18, 1997. This opinion is consistent with his

1

vote at the panel's conference following oral argument of the case on September 10,

1997.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 97-1591

___________

United States of America, *

*

Appellee, *

*

v. * Appeal from the United States 

* District Court for the Western 

Edward Gutierrez, * District of Missouri.

*

Appellant. *

___________

Submitted: September 10, 1997

Filed: November 26, 1997

___________

Before BOWMAN, Circuit Judge, HENLEY, Senior Circuit Judge, and MORRIS

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SHEPPARD ARNOLD, Circuit Judge.

___________

MORRIS SHEPPARD ARNOLD, Circuit Judge.

A federal grand jury charged Edward Gutierrez with money laundering and with

conspiracy to distribute cocaine and marijuana. After he failed to appear on the first

day of trial, he was tried in absentia and was found guilty on four of the six counts with

which he was charged. His counsel filed a motion for a new trial, claiming that the 
The Honorable Russell G. Clark, United States District Judge for the Western 2

District of Missouri.

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district court erred in trying Mr. Gutierrez in absentia. The motion was denied and

2

Mr. Gutierrez was sentenced (again in absentia) to 288 months in prison.

After spending some time in Mexico, the United States, and Germany,

Mr. Gutierrez was arrested again. Shortly thereafter, another federal grand jury

indicted him for failing to appear at trial. On its own motion, the district court then

entered an order vacating and setting aside the original convictions and ordering a new

trial because, after Mr. Gutierrez's sentencing, the Supreme Court decided Crosby v.

United States, 506 U.S. 255, 262 (1993), holding that the plain language of Fed. R.

Crim. P. 43(a) "prohibits the trial in absentia of a defendant who is not present at the

beginning of trial." In response, Mr. Gutierrez moved to dismiss the case solely on the

ground that because the court's action in setting aside the convictions was neither at his

request nor required to serve the ends of justice, a second trial would violate his Fifth

Amendment right not to be put twice in jeopardy. He did not dispute the district court's

authority to enter the order sua sponte. The court denied the motion. 

Before the second trial began, Mr. Gutierrez renewed his motion and the district

court denied it again. After Mr. Gutierrez was found guilty on the four original counts

and the failure-to-appear count, he made yet another motion for a new trial on the

ground that the second trial had put him in double jeopardy. The court denied the

motion, noting that whether the order setting aside the first trial was required by

“manifest necessity” or not, it was to the benefit of the defendant and thus not in

violation of the Fifth Amendment's double jeopardy clause. Mr. Gutierrez never sought

an order vacating the order setting aside his first trial, and he did not challenge the

district court’s authority to do so. He was then sentenced to 324 months in prison.
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Mr. Gutierrez advances two arguments on appeal. The first is that the district

court had no authority to vacate his first conviction sua sponte and that by doing so,

and retrying him, the court placed him twice in jeopardy for the same criminal acts.

The second is that, even if the second trial did not amount to double jeopardy, he could

not be subjected to a term of confinement longer than that to which the court originally

sentenced him. 

I.

Mr. Gutierrez did not see fit to challenge the authority of the district court to

enter the order vacating his conviction at the time that it was entered or, indeed, at any

time before he appealed. Therefore, unless the district court's action is reviewable as

plain error, Mr. Gutierrez's failure to object to it will be fatal to his attempt to raise the

issue. An argument not raised below cannot be raised on appeal for the first time

unless " 'the obvious result would be a plain miscarriage of justice.' " Davis v. Wyrick,

766 F.2d 1197, 1204 (8 Cir. 1985), cert. denied, 475 U.S. 1020 (1986), quoting

th

Kelley v. Crunk, 713 F.2d 426, 427 (8 Cir. 1983) (per curiam). th

We need not, however, scrutinize the court's action for plain error, because

Mr. Gutierrez, we believe, waived his right to object to it. The Supreme Court has

distinguished between a right that is inadvertently left unasserted and one that is

intentionally relinquished or abandoned, noting that the latter constitutes a waiver that

extinguishes a claim altogether. See United States v. Olano, 507 U.S. 725, 733 (1993).

It is clear that at the time that the district court vacated the judgment, Mr. Gutierrez

made a calculated decision not to challenge the court's authority to do so. His

calculation was based on a strategic choice between the likely outcomes of a second

trial, weighted by each outcome’s likelihood of occurring, and the certainty of a 24-year

sentence. Having made this calculation, Mr. Gutierrez cannot now, faced with a less

favorable outcome, expect to escape its consequences. 
-4-

Mr. Gutierrez cannot successfully argue that his failure to object to the order at

the time that it was entered was a mere oversight. His counsel candidly stated at oral

argument that "[w]e took the route that we didn't complain -- nor did the government --

about the court's own motion setting the first conviction aside.... We've never made any

bones about that, we're stuck with it, we're asking for two bites of the apple." The

district court may or may not have had the authority to set aside the initial conviction,

but it did have the power to do so. The order, in other words, may or may not have

been voidable, but it was certainly not void. Because the parties did not object, the

district court’s power was effectively, even though perhaps improperly, exercised.

"The distinction between forfeiture and waiver brings our plain error analysis to a

grinding halt." United States v. Yu-Leung, 51 F.3d 1116, 1122 (2 Cir. 1995). d

Mr. Gutierrez's double jeopardy argument therefore fails, because it was

predicated on the district court's lack of authority to vacate the first conviction sua

sponte. Furthermore, there is no double jeopardy difficulty if the second trial was for

the benefit of the defendant. See, e.g., United States v. Givens, 88 F.3d 608, 613 (8th

Cir. 1996). Because Mr. Gutierrez made the strategic decision not to object to the

vacating of the first judgment, we must assume that he thought that going to trial a

second time would be in his interest; certainly it is understandable that he would not

wish to seek reinstatement of a 24-year sentence. At the completion of the initial

trial, moreover, long before the conviction was vacated, Mr. Gutierrez moved for a new

trial on the ground that it was error to try him in absentia. Although this motion was

denied at the time, we offer the observation that in the end he received exactly what he

asked for. 

II.

Mr. Gutierrez also contends that the imposition of a longer sentence after his

second trial violates the double jeopardy clause of the Fifth Amendment. But Supreme

Court precedent makes it clear that there is no absolute bar to imposing a more severe

sentence on reconviction. See, e.g., North Carolina v. Pearce, 395 U.S. 711, 719-21

(1969). Although Mr. Gutierrez attempts in his brief to distinguish his case from
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Pearce, his arguments are unpersuasive. He argues that, because he did not ask the

district court to set aside his conviction and sentence, his case does not comport with

Pearce, which noted that the basis for allowing more severe sentencing on retrial was

"that the original conviction has, at the defendant's behest, been wholly nullified and

the slate wiped clean." Id. at 721. But in fact, as we have noted, Mr. Gutierrez did

ask for his conviction to be set aside, because, shortly after the initial verdict was

handed down, his attorney moved for a new trial on the ground that it was error to try

him in absentia. While the motion was denied at the time, the eventual new trial was

the belated fulfillment of that request.

III.

We therefore affirm the district court's order setting aside the first conviction and

the court's subsequent second sentence.

A true copy.

Attest:

 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.