Sunday, November 28, 2010

Case o' The Week: Ninth Steel-s Interlocutory J/x from Defendant -- Steel, Double Jeopardy and Interlocutory Appeals

There's a very short list of permissible interlocutory appeals for the defense. Challenges to sufficiency of the evidence (on remand), it turns out, aren't on that list. United States v. William A. Steel, 2010 WL 4723187 (9th Cir. Nov. 23, 2010), decision available here.

Players: Decision by Judge Graber (right).

Facts: Steel successfully challenged his Hobbs Act conviction on appeal, due to an improper Allen charge. See United States v. Williams, 547 F.3d 1187, 1195-97 (9th Cir. 2008). Id. at *1, see also blog available here.

(Note: Williams is an interesting and useful Allen opinion that is worth adding to a trial binder).

In Williams, the Ninth remanded for new trial based on this procedural error. When Steel hit the district court he moved for a judgment of acquittal on Count One and alleged a double jeopardy bar to any retrial. Id. After the district court denied Steel’s motion, he took an interlocutory appeal. Id.

Issue(s): Should the Ninth Circuit “exercise interlocutory jurisdiction over an appeal from a pretrial order denying a motion to dismiss on double jeopardy grounds”? Id. at *1.

Held: “In summary, Gutierrez-Zamarano and Sarkisian require dismissal of this interlocutory appeal. As in those cases, Defendant received a new trial on procedural grounds, while the district court rejected his sufficiency-of-the-evidence claim. In those circumstances, Defendant’s original jeopardy has not terminated; consequently, his double jeopardy claim is not colorable.” Id. at *2.

Of Note: Both the district court and the Ninth considered – and rejected – Steel’s challenge to the sufficiency of evidence on Count One on the first go-around. Because that challenge had been considered during after the first trial, the equities weren’t with him as he argued appellate jurisdiction for this interlocutory review this second time around. Nonetheless, the Steel case seems to embrace an unfair rule: a defendant could win on procedural error on appeal, could be forced to go through a retrial, and could conceivably never get appellate review of the original sufficiency-of-the-evidence challenge from the first conviction?

Could a defendant still preserve a Rule 29 appeal from the first trial, after being forced to go through a second trial? Probably not.

Judge Graber notes than in the previous Gutierrez-Zamarano decision, as well as here in Steel, the Circuit had already considered the sufficiency of evidence claim on the first appeal. Id. at *2. (In both cases, the defendants had apparently raised new Rule 29 challenges on remand). That appellate review of the Rule 29 claim is a critical aspect of the Steel rule on interlocutory jurisdiction and mitigates the Double Jeopardy problem: be aware of that component if litigating this type of interlocutory appeal.

How to Use: Judge Graber reluctantly concedes that there is one tiny exception to this bar on interlocutory appeals – though she does her level best to distinguish a good Ninth Circuit case out of existence. Id. at *3 (discussing United States v. Szado, 912 F.2d 390 (9th Cir. 1990). If you’re fortunate enough to have earned a remand on procedural error after trial, Szado would be worth a close look.

For Further Reading: It seems that the logical approach to the problem described above would be to require an appellate court to always consider a defendant’s sufficiency-of-the-evidence claim on the first go-around, even if the Circuit finds reversible procedural error as well. Such a rule would ensure that the sufficiency claims don’t get lost in the jurisdictional cracks if the case is remanded for retrial. For a thoughtful argument in favor of that rule, and a careful explanation of this complicated intersection of Double Jeopardy and appellate jurisdiction, see Sara O. Wang, Insufficient Attention to Insufficient Evidence: Some Double Jeopardy Implications, 70 Va LR 1381 (1993).

Image of the Honorable Susan P. Graber from

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at


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