Case o' The Week: The Right is right, Blanton & Double Jeopardy

Those who complain that a panel's political persuasion drives its results should read Judge O'Scannlain's (Right) decision in United States v. Blanton, __ F.3d __, No. 05-50302, Slip. Op. at 1755 (9th Cir. Feb. 12, 2007), decision available here. (Joined by Kozinski and Bybee). In this very good opinion, this "conservative" panel holds that Double Jeopardy bars the government's appeal of a Rule 29 motion -- even if the district court got the legal standard wrong!

Players: Big win by AFPDs Dean Gits and Carl Gunn.

Facts: Blanton was convicted of § 922(g), felon in possession. Id. at 1760. In a second (bifurcated) trial proceeding the government introduced proof of priors – including juvi adjudications – to establish ACCA. Id. The defense moved for a Rule 29 acquittal: the district court granted it under Tighe and Blakely (based on the fact that the juvi adjudications were not tried before a jury). Id. The government appealed. Id. at 1761.

Issue(s): We must determine whether the Fifth Amendment’s Double Jeopardy Clause prohibits the government from appealing a district court’s allegedly erroneous denial of an Armed Career Criminal Act sentencing enhancement.” Id. at 1759.

Held: "[W]e agree with Blanton that the district court resolved the issue of guilt or innocence in his favor, and that the Double Jeopardy Clause bars this appeal . . . It is immaterial whether the district court’s interpretation of the relevant legal issue was correct . . . .Under 18 U.S.C. § 3731, therefore, the government is without authority to appeal.” Id. at 1767.

Of Note: There are two good, big-picture principles in Blanton:

1. Jeopardy attaches at a successful Rule 29 motion – even if the district court got the law wrong. Does this embolden or discourage a trial judge faced with a Rule 29? Guess it depends on the district court.

2. Apprendi enhancement facts that increase statutory maximum sentences (be they “elements” or “sentencing factors”) are weighty enough to trigger Double Jeopardy protections. Id. at 1766-67.

Note also the panel: Kozinski, O’Scannlain, and Bybee (not big Jon Stewart fans). This very good opinion is as en banc and cert. proof as they come.

How to Use: In a San Francisco trial an AUSA once complained that the defense sandbagged her by filing a huge Rule 29 motion mid-trial. “Well,” observed Judge Chesney, dryly, “sufficiency of the evidence motions usually follow the government’s admission of the evidence.” Blanton lays this out clearly: it rejects the government’s (remarkable) whine that the defense didn’t bring its Rule 29 motion until the close of the government’s case. Id. at 1765. Use Blanton to fend off complaints that the defense wasn’t timely in bringing a big Rule 29 challenge.

There’s also an interesting discussion explaining that there is no summary judgment motion in criminal trials. Id. at 1765. This language would be helpful in letters to those (not-infrequent) clients who don’t want to go to trial, but who nonetheless demand that magic pretrial motion to dismiss for insufficiency of the evidence.

For Further Reading: There’s a lot of back story to Judge O’Scannlain’s analysis in Blanton. A key case underlying the opinion is United States v. Tighe, 266 F.3d 1187 (9th Cir. 2001). In that case, the Ninth held that a juvenile adjudication does not constitute a prior conviction under the Apprendi exception (at least, in the context of the ACCA). This little area of law has fostered a circuit split: as reported by Professor Berman, the Eleventh Circuit was unpersuaded by the Ninth’s take. See blog here. The Eleventh isn’t the only skeptic. For a detailed discussion of the circuit split on juvi priors (3rd / 8th & 11th vs. 9th & Harvard Law Review), see the InCourts blog here.

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website available at www.ndcalfpd.org


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