16

‐ 4321(L)

United States v. Serrano



## In the



# United States Court of Appeals

**for the Second Circuit**

A UGUST T ERM 2016

Nos. 16

‐ 4321(L); 17

‐ 461(CON)

U NITED S TATES OF A MERICA

, Appellee

,

v.

P EDRO S ERRANO

, a/k/a “Louis Ortiz,”

Defendant

‐ Appellant

.

On Appeal from the United States District Court

for the Southern District of New York

A RGUED : A PRIL 25, 2017

D ECIDED : M AY 10, 2017

Before: KEARSE, CALABRESI and CABRANES, Circuit Judges

.2 Defendant Pedro Serrano appeals from two orders of the

United States District Court for the Southern District of New York

(William H. Pauley III, Judge ). Serrano, who was convicted of

possessing ammunition as a felon in violation of 18 U.S.C § 922(g)(1),

successfully moved for a new trial based on erroneous jury

instructions pursuant to Federal Rule of Criminal Procedure 33, prior

to the entrance of judgment or sentencing. Serrano also moved for a

judgment of acquittal based on insufficient evidence pursuant to

Federal Rule of Criminal Procedure 29, and for a dismissal of the

indictment under the Double Jeopardy Clause of the United States

Constitution, both of which the District Court denied. Serrano

appeals the District Court’s denials of his Rule 29 and double

jeopardy motions and moves to stay his retrial in the District Court

pending the resolution of his appeals. The Government, inter alia

,

opposes the stay and moves for summary affirmance of the District

Court’s double jeopardy order.

We lack jurisdiction to consider Serrano’s appeals. First,

Serrano’s has not stated a colorable double jeopardy claim that may

be appealed before final judgment, as no event has occurred to

terminate his original jeopardy from his first trial. Second, as we have

previously held, the denial of a Rule 29 motion does not fall within

the scope of the collateral order doctrine and may not be appealed

prior to a final judgment.

Accordingly, Serrano’s appeals are DISMISSED for lack of

appellate jurisdiction, and all pending motions are DISMISSED AS

MOOT

.3 E DWARD S. Z AS (Amy Gallicchio, Barry D.

Leiwant, Annalisa Mirón, Of Counsel, on the

brief ), Federal Defenders of New York, Inc.,

Appeals Bureau, New York, NY, for

Defendant

‐ Appellant

.

D AVID W. D ENTON

, J R

., Assistant United

States Attorney, for Joon H. Kim, Acting

United States Attorney for the Southern

District of New York, New York, NY, for

Appellee

.

JOSÉ A. CABRANES, Circuit Judge :

Defendant Pedro Serrano appeals from two orders of the

United States District Court for the Southern District of New York

(William H. Pauley III, Judge ). Serrano, who was convicted of

possessing ammunition as a felon in violation of 18 U.S.C § 922(g)(1),

successfully moved for a new trial based on erroneous jury

instructions pursuant to Federal Rule of Criminal Procedure 33, 1

prior to the entrance of judgment or sentencing. Serrano also moved

1 Rule 33 states, in relevant part, that “[u]pon the defendant’s motion, the

court may vacate any judgment and grant a new trial if the interest of justice so

requires.” Fed. R. Crim. P. 33(a).4 for a judgment of acquittal based on insufficient evidence pursuant to

Federal Rule of Criminal Procedure 29, 2 and for a dismissal of the

indictment under the Double Jeopardy Clause of the United States

Constitution, both of which the District Court denied. Serrano

appeals the District Court’s denials of his Rule 29 and double

jeopardy motions and moves to stay his retrial in the District Court

pending the resolution of his appeals. The Government, inter alia

,

opposes the stay and moves for summary affirmance of the District

Court’s double jeopardy order.

We lack jurisdiction to consider Serrano’s appeals. First,

Serrano has not stated a colorable double jeopardy claim that may be

appealed before final judgment, as no event has occurred to

terminate his original jeopardy from his first trial. Second, as

previously held by this court, the denial of a Rule 29 motion does not

fall within the scope of the collateral order doctrine and may not be

appealed prior to a final judgment.

Accordingly, Serrano’s appeals are DISMISSED for lack of

appellate jurisdiction, and any pending motions are DISMISSED AS

MOOT

.

2 Under Rule 29, “[a] defendant may move for a judgment of acquittal

. . . within 14 days after a guilty verdict

. . . .” Fed. R. Crim. P. 29(c)(1). “[A] district

court will grant a motion to enter a judgment of acquittal on grounds of

insufficient evidence if it concludes that no rational trier of fact could have found

the defendant guilty beyond a reasonable doubt.” United States v. Jackson

, 335 F.3d

170, 180 (2d Cir. 2003) (citations omitted).5 BACKGROUND

In June 2016, a jury convicted defendant Pedro Serrano of

possessing ammunition as a felon. On July 22, 2016, prior to

sentencing, Serrano filed two motions. First, he filed a motion for a

judgment of acquittal pursuant to Rule 29, arguing that the

Government’s evidence at trial was insufficient to permit a

reasonable jury to convict him. Second, he filed a motion for a new

trial pursuant to Rule 33 on the ground that the District Court’s jury

instructions were flawed. Specifically, Serrano argued that the

District Court erred in its jury instructions on “conscious

avoidance”— i.e.

, that “knowledge of a criminal fact may be

established where the defendant consciously avoided learning the

fact while aware of a high probability of its existence.” 3 Serrano

contended that the District Court’s instructions failed to include an

“actual belief” proviso, required by our precedent, “advising the jury

that it cannot find knowledge of the [criminal] fact if the defendant

actually believed the contrary.” 4

3 Def.’s Mem. at 10–11, United States v. Serrano

, No. 16

‐ cr

‐ 169 (S.D.N.Y. July

22, 2016), ECF No. 75 (quoting United States v. Sicignano

, 78 F.3d 69, 71 (2d Cir.

1996)).

4 Id. at 11 (quoting Sicignano

, 78 F.3d at 71). The District Court’s jury

instructions on conscious avoidance were as follows:

In determining whether the defendant acted knowingly you may

consider whether the defendant deliberately closed his eyes to

what would otherwise have been obvious to him. In other words,

if you find that the defendant was aware of a high probability that6 On December 15, 2016, the District Court issued a decision on

Serrano’s Rule 29 and Rule 33 motions. 5 It denied Serrano’s Rule 29

motion for acquittal, finding the evidence sufficient to support the

jury’s guilty verdict. 6 But it granted his Rule 33 motion for a new

trial, holding that its jury instructions on conscious avoidance were

indeed erroneous. 7 Accordingly, the District Court ordered a new

trial to “avoid the possibility that ‘an innocent person may have been

convicted.’” 8

A few days later, Serrano filed a letter motion with the District

Court arguing that a retrial was barred by the Double Jeopardy

Clause of the United States Constitution. Specifically, Serrano

renewed his argument that the evidence at his first trial was legally

insufficient and contended that, because he had prevailed on his

motion for a new trial and because there was insufficient evidence of

his guilt, double jeopardy principles prohibited his retrial. The

District Court denied Serrano’s double jeopardy motion in a decision

he was in possession of ammunition you may find that the

defendant knowingly possessed it.

United States v. Serrano

, No. 16

‐ cr

‐ 169,

‐‐‐ F. Supp. 3d

‐‐‐‐ , 2016 WL 7335666, at *5

(S.D.N.Y. Dec. 15, 2016). This instruction did not contain an “actual belief”

proviso.

5 Id. at *1.

6 Id. at *1–*5.

7 Id. at *5–*7.

8 Id. at *7 (quoting United States v. Guang

, 511 F.3d 110, 119 (2d Cir. 2007)).7 issued on February 14, 2017. 9 The court found that since the retrial

was a facet of Serrano’s original jeopardy, the Double Jeopardy

Clause did not bar the retrial. 10 The District Court also held that any

appeal from the denial of the double jeopardy motion would be

frivolous since no event had occurred to terminate Serrano’s

jeopardy, and “[c]laims of double jeopardy in a case where jeopardy

had not terminated are ‘no longer “colorable” double jeopardy claims

which may be appealed before final judgment.’” 11

Serrano appeals both the District Court’s order denying his

Rule 29 motion for a judgment of acquittal, and its order denying his

motion to dismiss on double jeopardy grounds. 12 Serrano now files a

motion with this Court seeking a stay of all District Court

proceedings pending these appeals. 13 In response, the Government

contends that we should deny Serrano’s motion for a stay, dismiss

the appeals for lack of jurisdiction, or, in the alternative, summarily

affirm the District Court’s order denying Serrano’s double jeopardy

motion.

9 United States v. Serrano

, No. 16

‐ cr

‐ 169, 2017 WL 590321 (S.D.N.Y. Feb. 14,

2017).

10 Id. at *1.

11 Id. at *2 (quoting Richardson v. United States

, 468 U.S. 317, 326 n.6 (1984)).

12 Serrano’s Rule 29 appeal is docketed before us under No. 16

‐ 4321, while

his double jeopardy appeal is docketed under No. 17

‐ 461.

13 Serrano previously sought a stay pending appeal from the District Court

at a pretrial conference on March 2, 2017, which the District Court denied.8 DISCUSSION

Prior to addressing the motions filed by Serrano and the

motion by the Government for summary affirmance, it is first

necessary to determine whether we have jurisdiction over Serrano’s

appeals. Generally, our jurisdiction is limited to “final decisions of

the district courts,” 14 which, in a criminal case, is marked by

“conviction and imposition of sentence.” 15 While Serrano has

appealed before conviction or sentence, he invokes the collateral

order doctrine, which provides an exception to this finality rule. To

appeal an interlocutory order under the collateral order doctrine, the

“order must (1) conclusively determine the disputed question, (2)

resolve an important issue completely separate from the merits of the

action, and (3) be effectively unreviewable on appeal from a final

judgment.” 16 We address each of Serrano’s appeals in turn.

I. Double Jeopardy Appeal

The Supreme Court has acknowledged that an order denying a

pretrial motion to dismiss an indictment on double jeopardy grounds

may be appealed under the collateral order doctrine. 17 The

14 28 U.S.C. § 1291; see Blue Ridge Invs., L.L.C. v. Republic of Arg.

, 735 F.3d 72,

79 (2d Cir. 2013).

15 Flanagan v. United States

, 465 U.S. 259, 263 (1984).

16 Schwartz v. City of New York

, 57 F.3d 236, 237 (2d Cir. 1995).

17 Abney v. United States

, 431 U.S. 651, 662 (1977); see also Richardson

, 468

U.S. at 320.9 appealability of a double jeopardy claim, however, “depends upon

its being at least colorable

, and

. . . frivolous claims of former jeopardy

may be weeded out by summary procedures.” 18 A “colorable claim

. . . presupposes that there is some possible validity to a claim.” 19

The Government, relying primarily on the Supreme Court’s

decision in Richardson v. United States

, contends that Serrano’s double

jeopardy claim is not colorable and therefore not appealable under

the collateral order doctrine. In Richardson

, the Supreme Court

considered whether a defendant whose trial resulted in a hung jury

was nevertheless entitled to bring a double jeopardy claim

contending that the insufficiency of the evidence at his first trial

precluded retrial. 20 The Court held that “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,”

and “that the failure of the jury to reach a verdict is not an event

which terminates jeopardy.” 21 The Richardson Court further stated

that “claims of double jeopardy such as [the defendant’s] are no

18 Richardson

, 468 U.S. at 322 (citations and internal quotation marks

omitted) (emphasis added).

19 Id. at 326 n.6.

20 Id. at 318–19.

21 Id. at 325.10 longer ‘colorable’ double jeopardy claims which may be appealed

before final judgment.” 22

We agree with the Government that Serrano’s double jeopardy

claim is not “colorable.” When a “trial has ended in a conviction, the

double jeopardy guarantee imposes no limitations whatever upon

the power to retry a defendant who has succeeded in getting his first

conviction set aside

. . . . [unless the] conviction has been reversed

because of insufficiency of the evidence.” 23 Here, as in Richardson

, no

event has occurred to terminate Serrano’s jeopardy from his original

trial. He was not acquitted, and his guilty verdict was set aside for

reasons unrelated to the sufficiency of the evidence against him.

Although the jury rendered a guilty verdict against Serrano, no

sentence was imposed nor judgment of conviction entered because

Serrano successfully procured a new trial. Accordingly, just as the

declaration of a mistrial does not terminate jeopardy, so also a jury

verdict that is set aside for a new trial prior to the entry of a judgment

of conviction does not terminate jeopardy. Serrano’s original

jeopardy is therefore ongoing. His claim of double jeopardy is thus

not “colorable” and we lack jurisdiction to hear the claim.

Despite Serrano’s arguments to the contrary, our decisions in

United States v. Wallach

, 24 United States v. Allen, 25 and Hoffler v. Bezio 26

22 Id. at 326 n.6 (emphasis added).

23 United States v. DiFrancesco

, 449 U.S. 117, 131 (1980) (citations, internal

quotation marks and emphasis omitted).

24 979 F.2d 912 (2d Cir. 1992).11 do not support the proposition that we have jurisdiction to review

Serrano’s interlocutory double jeopardy appeal simply because he

challenges the sufficiency of the evidence against him. In both Allen

and Hoffler

, the defendants raised their sufficiency of the evidence

challenges on appeal from a final judgment before retrial was

ordered. 27 In contrast, no final judgment of conviction has ever been

entered in Serrano’s case. Accordingly, Allen and Hoffler have no

bearing on our assessment of whether Serrano raises a “colorable”

double jeopardy appeal.

Serrano’s heavy reliance on our decision in Wallach is

misplaced for another reason. In Wallach

, we entertained an

interlocutory double jeopardy appeal that included a sufficiency

‐ of

‐

the

‐ evidence challenge, even though the defendant’s conviction had

been vacated on appeal and a new trial had been granted. 28 We did

so, however, precisely because Wallach’s double jeopardy claim was

“colorable.”

A prior panel had vacated Wallach’s conviction “on the

ground that the prosecution should have known that a Government

witness’s trial testimony was false” and had ordered a retrial. 29 In his

25 127 F.3d 260 (2d Cir. 1997).

26 726 F.3d 144 (2d Cir. 2013).

27 See Hoffler

, 726 F3d at 146–47, 149; Allen

, 127 F.3d at 264.

28 Wallach

, 979 F.2d at 913–17.

29 Id. at 913.12 second appeal—an interlocutory appeal prior to retrial—Wallach

argued that he was entitled not to be retried “when the prosecutor

engage[d] in serious misconduct with the intention of preventing an

acquittal.” 30 Wallach’s argument was an attempt to extend the

holding in Oregon v. Kennedy

, in which the Supreme Court held that

the Double Jeopardy Clause barred a retrial where, to avoid an

acquittal, the prosecutor engages in misconduct for the purpose of

goading a defendant into moving for a mistrial. 31 Though the Wallach

court ultimately rejected the defendant’s claims on the merits, it

noted that “there is force to Wallach’s argument for some sort of

extension” of the Kennedy principle. 32 Consequently, Wallach’s claim

was colorable, and is thus readily distinguishable from the double

jeopardy claim brought by Serrano on this appeal.

II. Rule 29 Sufficiency

‐ of

‐ the

‐ Evidence Appeal

The Government also argues that we lack jurisdiction over

Serrano’s appeal of the District Court’s denial of his Rule 29 motion

challenging the sufficiency of the evidence against him. In United

States v. Ferguson

, we determined that “denial of a Rule 29 motion

does not fall within the narrow scope of the collateral order

30 Id. at 915.

31 456 U.S. 667, 677–79 (1982).

32 Wallach

, 979 F.2d at 916.13 doctrine.” 33 For that reason, Serrano may not appeal the interlocutory

order denying his Rule 29 motion.

CONCLUSION

We have considered the other arguments raised by Serrano on

appeal and find them to be without merit. To summarize, we hold

that

(1) Serrano has not stated a colorable double jeopardy claim

that may be appealed before final judgment, as no event has

occurred to terminate his original jeopardy from his first

trial; and

(2) Serrano’s appeal of the denial of his Rule 29 motion does

not fall within the scope of the collateral order doctrine and

may not be appealed before final judgment.

Serrano’s appeals are therefore DISMISSED for lack of appellate

jurisdiction. All pending motions are DISMISSED AS MOOT

.

33 246 F.3d 129, 138 (2d Cir. 2001).