FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-50335
Plaintiff-Appellee, D.C. No.
v. 3:02-cr-03171-
WILLIAM A. STEEL, IEG-3
Defendant-Appellant.
OPINION
Appeal from the United States District Court
for the Southern District of California
Irma E. Gonzalez, Chief District Judge, Presiding
Submitted November 2, 2010*
Pasadena, California
Filed November 23, 2010
Before: J. Clifford Wallace and Susan P. Graber,
Circuit Judges, and Richard Mills,** Senior District Judge.
Opinion by Judge Graber
*The panel unanimously concludes this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
**The Honorable Richard Mills, Senior United States District Judge for
the Central District of Illinois, sitting by designation.
18725
UNITED STATES v. STEEL 18727
COUNSEL
Steve Miller, Assistant United States Attorney, Criminal Divi-
sion, San Diego, California, for the plaintiff-appellee.
Gary P. Burcham, Burcham & Zugman, A.P.C., San Diego,
California, for the defendant-appellant.
18728 UNITED STATES v. STEEL
OPINION
GRABER, Circuit Judge:
A jury convicted Defendant William Steel and three co-
defendants of several crimes, including conspiracy to interfere
with commerce by robbery in violation of the Hobbs Act, 18
U.S.C. § 1951(a) (“Count One”). On appeal, we reversed that
conviction and remanded the case for a new trial because,
although the evidence was sufficient to convict Steel on
Count One, United States v. Williams, 547 F.3d 1187,
1195-97 (9th Cir. 2008), the jury had improperly received an
Allen charge,1 id. at 1206-07.
After remand, and before his re-trial began, Defendant
moved to dismiss Count One, or for a judgment of acquittal.
In that motion, Defendant raised two new arguments contend-
ing that the evidence presented at his original trial had been
insufficient to support a conviction on Count One. Conse-
quently, he asserted, holding a second trial on Count One
would violate the Double Jeopardy Clause. The district court
denied the motion on the merits. Reviewing our jurisdiction
de novo, United States v. Romero-Ochoa, 554 F.3d 833, 835
(9th Cir. 2009), we dismiss Defendant’s interlocutory appeal.
[1] We have “jurisdiction of appeals from all final deci-
sions of the district courts of the United States.” 28 U.S.C.
§ 1291. Under the collateral order doctrine, however, we have
authority to review a “narrow class of decisions that do not
terminate the litigation, but must, in the interest of achieving
a healthy legal system, nonetheless be treated as final.” Digi-
tal Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 867
(1994) (internal quotation marks and citation omitted). The
Supreme Court has cautioned that the collateral order doctrine
1
An Allen charge “is the generic name for a class of supplemental jury
instructions given when jurors are apparently deadlocked.” United States
v. Mason, 658 F.2d 1263, 1265 n.1 (9th Cir. 1981).
UNITED STATES v. STEEL 18729
“must never be allowed to swallow the general rule that a
party is entitled to a single appeal, to be deferred until final
judgment has been entered.” Mohawk Indus., Inc. v. Carpen-
ter, 130 S. Ct. 599, 605 (2009) (internal quotation marks
omitted). That doctrine applies if, but only if, “an order . . .
‘[1] conclusively determine[s] the disputed question, [2]
resolve[s] an important issue completely separate from the
merits of the action, and [3] [is] effectively unreviewable on
appeal from a final judgment.’ ” United States v. Higuera-
Guerrero (In re Copley Press, Inc.), 518 F.3d 1022, 1025 (9th
Cir. 2008) (bracketed numbers in original) (quoting Coopers
& Lybrand v. Livesay, 437 U.S. 463, 468 (1978)).
[2] In some circumstances, we may exercise interlocutory
jurisdiction over an appeal from a pretrial order denying a
motion to dismiss on double jeopardy grounds. See Abney v.
United States, 431 U.S. 651, 662-63 (1977) (holding that the
denial of a motion to dismiss an indictment on double jeop-
ardy grounds satisfied the three factors of the collateral order
doctrine). Further, we may review sufficiency-of-the-evidence
claims that are a necessary component of a double jeopardy
claim. Richardson v. United States, 468 U.S. 317, 321-22
(1984). But, in order to support interlocutory jurisdiction, a
claim of double jeopardy must be at least “colorable.” Id. at
322.
Here, Defendant correctly contends that his sufficiency-of-
the-evidence argument is a necessary component of his dou-
ble jeopardy claim. Even so, we lack interlocutory jurisdiction
because Defendant’s double jeopardy claim is not colorable.
[3] We have repeatedly rejected double jeopardy claims
where a defendant challenged the district court’s refusal to
enter a judgment of acquittal prior to retrial. In United States
v. Gutierrez-Zamarano, 23 F.3d 235, 237 (9th Cir. 1994), for
example, the district court denied the defendant’s post-trial
sufficiency-of-the-evidence motion, but granted the defen-
dant’s motion for a new trial because of an error in instructing
18730 UNITED STATES v. STEEL
the jury. On appeal, we held that a retrial would not subject
the defendant to double jeopardy—regardless of the suffi-
ciency of the evidence—because the defendant’s original
jeopardy had not yet terminated. Id. at 238. Jeopardy had not
terminated because there had been no acquittal: The jury had
convicted the defendant, and the district court found the evi-
dence supporting the conviction sufficient. Id. In so holding,
we explained that “[t]he Double Jeopardy Clause ‘does not
preclude the Government’s retrying a defendant whose con-
viction is set aside because of an error in the proceedings
leading to conviction.’ ” Id. (quoting United States v. Tateo,
377 U.S. 463, 465 (1964)).
[4] So, too, in this case, Defendant’s conviction was set
aside because of a procedural error (the Allen charge). But,
again as in Gutierrez-Zamarano, the jury convicted Defen-
dant, and both the district court and we found the evidence
supporting the conviction sufficient in response to the argu-
ments then raised.
In United States v. Sarkisian, 197 F.3d 966, 983 (9th Cir.
1999), similarly, we held that we lacked interlocutory juris-
diction to review the defendant’s double jeopardy claim
because it was not colorable. As in Gutierrez-Zamarano, the
district court in Sarkisian had granted the defendant’s motion
for a new trial but had denied the defendant’s motion for a
judgment of acquittal. Id. The defendant asked us to review
his sufficiency-of-the-evidence claim and argued that a retrial
would violate the Double Jeopardy Clause. Id. Relying on
Gutierrez-Zamarano, we held that we lacked interlocutory
jurisdiction because the defendant had not raised a colorable
double jeopardy claim, given that his original jeopardy had
not yet terminated. Id.; see also United States v. Keating, 147
F.3d 895, 904 n.6 (9th Cir. 1998) (holding that, because the
defendant’s original jeopardy had not terminated when the
district court granted a new trial, double jeopardy did not
attach regardless of the insufficiency of the evidence at the
first trial).
UNITED STATES v. STEEL 18731
[5] 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 jeop-
ardy claim is not colorable.
[6] Despite the holdings in Gutierrez-Zamarano and Sarki-
sian, Defendant argues that our earlier decision in United
States v. Szado, 912 F.2d 390 (9th Cir. 1990), should control.
In Szado, the district court, reviewing a judgment entered by
a magistrate judge, had granted the defendant’s motion for a
new trial on procedural grounds but declined to rule on the
defendant’s sufficiency-of-the-evidence claim. Id. at 390-91.
On appeal, the defendant contended that the district court’s
failure to decide his sufficiency-of-the-evidence claim com-
promised his double jeopardy rights. We concluded that the
defendant’s double jeopardy claim was colorable. Id. at
391-92 (citing Richardson, 468 U.S. at 321-22).2 We have
limited Szado to its unusual facts. See United States v. Sche-
menauer, 394 F.3d 746, 750 (9th Cir. 2005) (“The conclusion
that the double jeopardy claim in Szado was colorable reflects
our decisions holding that appellate courts should consider
sufficiency-of-the-evidence claims on direct appeals of final
judgments . . . .” (emphasis added)). Thus, Szado holds only
that a double jeopardy claim is colorable when a district court,
2
We question Szado’s reliance on Richardson. In Richardson, the
Supreme Court held that the petitioner’s double jeopardy claim was color-
able where the district court had declared a mistrial due to jury deadlock
but had denied the defendant’s motion for a judgment of acquittal because
of insufficient evidence to convict. 468 U.S. at 322. Yet, Richardson fore-
closed interlocutory appellate review of any future claims presenting simi-
lar facts, stating in a footnote: “It follows logically from our holding today
that claims of double jeopardy such as petitioner’s are no longer ‘color-
able’ double jeopardy claims which may be appealed before final judg-
ment.” Id. at 326 n.6. Nonetheless, we need not revisit Szado because, as
noted in text, the present case is readily distinguishable.
18732 UNITED STATES v. STEEL
sitting in an appellate capacity and reviewing a final judg-
ment of conviction by a magistrate judge, entirely fails to rule
on a sufficiency-of-the-evidence claim but grants a new trial.
Id. In this case, however, the district court explicitly denied
Defendant’s sufficiency-of-the-evidence claim, and it was not
acting in an appellate capacity. Therefore, Szado does not
support Defendant’s theory that his double jeopardy claims
are colorable.
We also note that, in the present context, Gutierrez-
Zamarano and Sarkisian remain good law in light of the
Supreme Court’s recent decision in Mohawk. That opinion
“reflects a healthy respect for the virtues of the final-judgment
rule.” 130 S. Ct. at 605. Nothing in Mohawk expands the
opportunity to obtain interlocutory review, and nothing in
Mohawk dilutes the double jeopardy analysis that underlies
Gutierrez-Zamarano and Sarkisian.
Appeal DISMISSED.