United States Court of Appeals
For the First Circuit
No. 03-2732
JORGE J. GONZALEZ,
Petitioner, Appellant,
v.
THE JUSTICES OF THE MUNICIPAL COURT OF BOSTON ET AL.,
Respondents, Appellees.
ON REMAND FROM THE UNITED STATES SUPREME COURT
Before
Selya, Circuit Judge,
Porfilio,* Senior Circuit Judge,
and Lynch, Circuit Judge.
Robert W. Hagopian on supplemental brief for appellant.
Thomas F. Reilly, Attorney General, Commonwealth of
Massachusetts, and David M. Lieber, Assistant Attorney General, on
supplemental brief for appellees.
August 24, 2005
__________
*Of the Tenth Circuit, sitting by designation.
SELYA, Circuit Judge. In Gonzalez v. Justices of the
Municipal Court, 382 F.3d 1 (1st Cir. 2004), we affirmed the
district court's denial of petitioner-appellant Jorge J. Gonzalez's
request for federal habeas relief from a pending state prosecution.
Concluding that an initial proceeding based on the same complaint
had not resulted in an acquittal within the cognizance of the
Double Jeopardy Clause, we held that the pending prosecution did
not compromise the petitioner's right not to be twice put in
jeopardy for the same offense. See id. at 10-12. The petitioner
repaired to the United States Supreme Court, where he filed a
petition for a writ of certiorari. That petition argued, inter
alia, that the initial proceeding had terminated in an acquittal
and, thus, triggered double jeopardy concerns.
While the certiorari petition was pending, the Court
decided Smith v. Massachusetts, 125 S. Ct. 1129 (2005), a case that
presented a variant of the question of what constitutes an
acquittal for double jeopardy purposes. There, the Justices
concluded that the state court's midtrial grant of the defendant's
motion for a judgment of acquittal under Mass. R. Crim. P. 25(a)
(known colloquially as a required finding of not guilty) was an
acquittal within the cognizance of the Double Jeopardy Clause
because it had emanated from the trial court's evaluation of the
evidence and, accordingly, constituted "a substantive determination
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that the prosecution ha[d] failed to carry its burden." Id. at
1134.
Shortly thereafter, the Supreme Court granted Gonzalez's
petition for certiorari pro forma, vacated our judgment, and
remanded the case for consideration in light of Smith. Gonzalez v.
Justices of the Mun. Ct., 125 S. Ct. 1640 (2005) (mem.). We
directed the parties to file supplemental briefs addressing the
effect (if any) of Smith on our prior decision. Having studied the
decision in Smith and the parties' submissions, we reinstate our
earlier judgment.
Our prior opinion chronicles the factual and procedural
background of the case, see Gonzalez, 382 F.3d at 2-5, and it would
serve no useful purpose to rehearse those details here. Instead,
we assume the reader's familiarity with our original opinion and
move directly to the implications of the remand order. We then
examine what effect, if any, Smith may have upon the conclusions we
reached in Gonzalez.
We are required to revisit this case because of the
Supreme Court's use of a procedure known as a "GVR" — an acronym
commonly used to describe the steps of granting certiorari,
vacating the judgment below, and remanding a case to the lower
court for further consideration. See, e.g., Stutson v. United
States, 516 U.S. 193, 194 (1996); Lawrence v. Chater, 516 U.S. 163,
165-66 (1996). In Lawrence, the Court noted that the occasion for
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a GVR order typically arises "[w]here intervening developments . .
. reveal a reasonable probability that the decision below rests
upon a premise that the lower court would reject if given the
opportunity for further consideration, and where it appears that
such a redetermination may determine the ultimate outcome of the
litigation." 516 U.S. at 167.
It is important to remember, however, that a GVR order is
neither an outright reversal nor an invitation to reverse; it is
merely a device that allows a lower court that had rendered its
decision without the benefit of an intervening clarification to
have an opportunity to reconsider that decision and, if warranted,
to revise or correct it. See Pratt v. Philbrook, 109 F.3d 18, 19-
20 (1st Cir. 1997). The GVR order itself does not constitute a
final determination on the merits; it does not even carry
precedential weight. See Tyler v. Cain, 533 U.S. 656, 666 n.6
(2001); Henry v. City of Rock Hill, 376 U.S. 776, 777 (1964); see
also Lawrence, 516 U.S. at 178 (Scalia, J., dissenting) (suggesting
that the GVR ought to be termed "no fault V & R" because it
represents a "vacation of a judgment and remand without any
determination of error in the judgment below"). Consequently, we
do not treat the Court's GVR order as a thinly-veiled direction to
alter our course; rather, the order recognizes — as do we — that
the Smith decision is pertinent and requires us to determine
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whether anything that the Smith Court said demands a different
result.
The scope of our reconsideration is limited. As a
general rule, "when the Supreme Court remands in a civil case, the
court of appeals should confine its ensuing inquiry to matters
coming within the specified scope of the remand." Kotler v. Am.
Tobacco Co., 981 F.2d 7, 13 (1st Cir. 1992). While we retain the
power "to reexamine an issue that lies beyond the circumference of
the Supreme Court's specific order," the petitioner here has relied
solely on the perceived commonalities between his case and Smith in
his supplemental brief. There is, therefore, no reason to enlarge
the scope of our review beyond the Court's direction to reconsider
our original decision in light of Smith.1
Like Gonzalez, Smith arose from a criminal proceeding in
a Massachusetts trial court. The Commonwealth had indicted Smith
on three counts, including a charge of unlawful possession of a
firearm. A jury trial commenced and, after the prosecution rested,
the defendant moved under Mass. R. Crim. P. 25(a) for a required
finding of not guilty on the firearms count, arguing that the
Commonwealth had not proved an essential element of the offense.
Smith, 125 S. Ct. at 1132. At sidebar, the trial judge granted the
1
In carrying out that mission, our standard of review is
unchanged. See Gonzalez, 382 F.3d at 7 (stating that this court
would defer to the state court's findings of fact but would
undertake plenary review of its resolution of issues of law).
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motion, agreeing that the prosecution had not introduced sufficient
evidence to prove that element. Id. at 1132-33. The judge
endorsed her ruling on the docket but did not notify the jury of
the acquittal on the count in question. Id. at 1133.
Smith then presented a defense to the two remaining
charges. After both sides had rested but before closing arguments,
the Commonwealth renewed its objection to the judgment of acquittal
on the firearms charge and called the judge's attention to a
previously unmentioned precedent. Id. The judge, announcing that
she was "reversing" her earlier ruling, granted the Commonwealth's
request to defer the sufficiency of the evidence determination
until after the verdict. Id. The jury proceeded to convict Smith
on all three counts and the judge allowed the verdict to stand.
Id.
After exhausting avenues of appellate review available in
the state courts, Smith sought a writ of certiorari from the United
States Supreme Court. He posited that the trial court's grant of
the Rule 25(a) motion at sidebar was an acquittal and that its
later submission of the firearms count to the jury subjected him to
"postacquittal factfinding proceedings going to guilt or innocence"
in violation of the Double Jeopardy Clause. See id. at 1134
(quoting Smalis v. Pennsylvania, 476 U.S. 140, 145 (1986)).
The Court granted certiorari and, in a 5-4 decision,
reversed Smith's conviction on the firearms charge. The Court's
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analysis of "whether the judge's initial ruling on petitioner's
motion was, in fact, a judgment of acquittal," id., grounds our
inquiry. Significantly, the Smith Court did not purport to
unsettle the foundations of what constitutes an acquittal for
double jeopardy purposes but, rather, relied on the traditional
definition, which equates such an acquittal with a disposition that
"actually represents a resolution, correct or not, of some or all
of the factual elements of the offense charged." Id. (quoting
United States v. Martin Linen Supply Co., 430 U.S. 564, 571
(1977)).
The Court rejected the Commonwealth's effort to draw
distinctions for double jeopardy purposes based on the
characterization of a finding of insufficiency of the evidence as
a legal rather than a factual determination and held that a finding
that the evidence was insufficient as a matter of law is a
resolution of the factual elements of the charge. See id. at 1134-
35. It emphasized that "the judge 'evaluated the [Commonwealth's]
evidence and determined that it was legally insufficient to sustain
a conviction.'" Id. at 1135 (alteration in original) (quoting
Martin Linen, 430 U.S. at 572).
Seen in this light, it is readily evident that Smith did
not alter the definition of an acquittal previously articulated by
the Court in Martin Linen. To the contrary, the Smith Court
confirmed that definition. See id. at 1134 (explaining that "a
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substantive determination that the prosecution has failed to carry
its burden," made by the judge pursuant to a procedure for
rendering a directed verdict of acquittal, is an acquittal for
double jeopardy purposes). There was no serious question in Smith
about whether the trial judge had, in the ordinary course of
business, entered a judgment of acquittal at sidebar; the
perplexing question was whether that acquittal was open to later
revision by the trial court. See id. at 1135. The Supreme Court
concluded that it was not. Id. at 1137.
We followed the same general approach in Gonzalez.
There, we relied on the Martin Linen definition and applied the
same language from that case to determine whether the trial court's
actions had resulted in what amounted to an acquittal for double
jeopardy purposes. See Gonzalez, 382 F.3d at 10-11. Thus, Smith
bears witness to the fact that we applied the correct definition of
an acquittal. The only question that remains, then, is whether the
similarities between this case and Smith indicate that we
misapplied the Martin Linen definition of an acquittal. We answer
that question in the negative because this case is factually
distinct from Smith in relevant respects.
To be sure, both cases involved a request, made in
accordance with Massachusetts procedural rules, for a required
finding of not guilty and the trial judge's subsequent granting of
that request. But the similarities end there. In Smith, there was
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no doubt that when the trial judge entertained the Rule 25(a)
motion at sidebar, her examination involved a genuine effort to
determine the sufficiency of the evidence presented. See Smith,
125 S. Ct. at 1132-33. There was no suggestion that the judge's
finding was anything other than what it appeared to be: a merits-
directed finding of not guilty predicated on the perceived
insufficiency of the prosecution's evidence. Right or wrong, that
finding resulted in a bona fide acquittal.
Here, however, the trial court's "finding" had no basis
in any assessment of the legal sufficiency of the facts presented.
Indeed, no facts of any relevance to the defendant's guilt or
innocence were presented. The sole witness, called by the defense,
was the petitioner's daughter, who possessed no knowledge relevant
to the charged crimes. See Gonzalez, 382 F.3d at 10. Taking a
functional approach comporting with the Martin Linen Court's
instruction that we determine whether "the ruling of the judge,
whatever its label, actually represents a resolution, correct or
not" of the sufficiency of the factual elements of the case, 430
U.S. at 571 (emphasis supplied), we concluded that the so-called
acquittal was a sheep in wolf's clothing — "an artifice designed to
dress a dismissal without prejudice in a raiment more protective of
a possible double jeopardy defense." Gonzalez, 382 F.3d at 10.
Refined to bare essence, we concluded that Martin Linen's
functional approach to the task of characterizing a trial court's
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determination as an acquittal vel non counseled against our taking
the judge's ukase at face value. See id. Because the judge had
labeled what was (and should have been) a dismissal for want of
prosecution as a required finding of not guilty, and thus had
manufactured a pseudo-acquittal, we refused to accord that pseudo-
acquittal preclusive effect for double jeopardy purposes. Id. at
10.
While the Supreme Court may ultimately determine that the
language in Martin Linen, 430 U.S. at 571, though suggesting a
functional approach to the characterization of actions that might
be deemed an acquittal, should not be so read, nothing in Smith
speaks either to that question or to the more specific question of
how to characterize a dismissal for want of prosecution
deliberately and misleadingly packaged as a judgment of acquittal.
Nor does Smith suggest any potential limits on Martin Linen's
functional approach. Therefore, Smith neither contradicts nor
undermines our application of the Martin Linen definition of an
acquittal.2
We need go no further. Because Smith does not indicate
that our original decision rested on a faulty premise, we adhere to
2
Because we conclude that Smith, fairly read, does not alter
our determination that the state court proceedings in this case did
not result in an acquittal, we need not address the related
question, taken up in Smith, 125 S. Ct. at 1135-37, as to when an
acquittal, once issued, might be deemed "automatically, or even
presumptively, nonfinal," id. at 1137.
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that decision and once again affirm the district court's denial of
the petitioner's request for habeas relief. Our earlier judgment
must, therefore, be reinstated.
So Ordered.
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