16‐4321(L)
United States v. Serrano
In the
United States Court of Appeals
for the Second Circuit
AUGUST TERM 2016
Nos. 16‐4321(L); 17‐461(CON)
UNITED STATES OF AMERICA,
Appellee,
v.
PEDRO SERRANO, a/k/a “Louis Ortiz,”
Defendant‐Appellant.
On Appeal from the United States District Court
for the Southern District of New York
ARGUED: APRIL 25, 2017
DECIDED: MAY 10, 2017
Before: KEARSE, CALABRESI and CABRANES, Circuit Judges.
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.
2
EDWARD S. ZAS (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.
DAVID W. DENTON, JR., 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).
3
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).
4
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 that
5
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)).
6
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)).
Serrano’s Rule 29 appeal is docketed before us under No. 16‐4321, while
12
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.
7
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
28 U.S.C. § 1291; see Blue Ridge Invs., L.L.C. v. Republic of Arg., 735 F.3d 72,
14
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).
Abney v. United States, 431 U.S. 651, 662 (1977); see also Richardson, 468
17
U.S. at 320.
8
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
Richardson, 468 U.S. at 322 (citations and internal quotation marks
18
omitted) (emphasis added).
19 Id. at 326 n.6.
20 Id. at 318–19.
21 Id. at 325.
9
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. Bezio26
22 Id. at 326 n.6 (emphasis added).
United States v. DiFrancesco, 449 U.S. 117, 131 (1980) (citations, internal
23
quotation marks and emphasis omitted).
24 979 F.2d 912 (2d Cir. 1992).
10
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.
11
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.
12
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).
13