FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-10045
Plaintiff-Appellee, D.C. No.
v. 4:08-cr-01482-FRZ-
GABRIEL ALVAREZ-MORENO, GEE-1
Defendant-Appellant.
OPINION
Appeal from the United States District Court
for the District of Arizona
Frank R. Zapata, Senior District Judge, Presiding
Argued and Submitted
March 16, 2011—San Francisco, California
Filed September 13, 2011
Before: Richard A. Paez, Marsha S. Berzon, and
Carlos T. Bea, Circuit Judges.
Opinion by Judge Berzon
17381
UNITED STATES v. ALVAREZ-MORENO 17383
COUNSEL
Francisco Leon, Tucson, Arizona, for Gabriel Alvarez-
Moreno.
Robert Lally Miskell, Office of the United States Attorney,
Tucson, Arizona, for the United States of America.
17384 UNITED STATES v. ALVAREZ-MORENO
OPINION
BERZON, Circuit Judge:
This case raises a thorny double jeopardy issue: whether a
district court may, in the absence of a motion for new trial by
the defendant, order a new trial for a defendant who was tried
before the judge but never properly waived his constitutional
right to a jury trial.
Defendant-Appellant Gabriel Alvarez-Moreno was indicted
in December 2008 on two counts of transporting an illegal
alien for profit, in violation of 8 U.S.C. § 1324(a)(1)(A)(ii)
and 1324(a)(1)(B)(i). Less than two weeks before Alvarez-
Moreno’s case was to be tried before a jury, Alvarez-Moreno
and the Government agreed to a bench trial instead. When the
parties notified the district court of that agreement, the court
entered an order vacating the jury trial and setting a bench
trial. In the same order, the district court directed Alvarez-
Moreno to file a waiver of jury trial, as required by Rule
23(a)(1) of the Federal Rules of Criminal Procedure.
The two-day bench trial concluded on October 15, 2009.
Alvarez-Moreno was found guilty. No one noticed at that
point that Alvarez-Moreno had not filed the waiver of his
right to a jury trial.
A few weeks later, Alvarez-Moreno’s attorney filed a “Mo-
tion to Set Aside Verdict by Trial Court.” The motion argued
that the results of the bench trial were invalid, not only
because the waiver was never filed, but also because the dis-
trict court had not personally examined Alvarez-Moreno to
ensure that he was voluntarily, knowingly, and intelligently
waiving his right to be tried by a jury. The only remedy
Alvarez-Moreno requested was that the verdict be set aside.
In response, the government asked the court to treat Alvarez-
Moreno’s motion as an untimely motion for a new trial or, in
UNITED STATES v. ALVAREZ-MORENO 17385
the alternative, to declare a mistrial sua sponte because of the
error.
The district court held a hearing on the motion about a
month later. At the hearing, Alvarez-Moreno’s attorney
expressed uncertainty about the precise relief he was seeking,
but did say explicitly that he was not asking for a new trial.
The district court observed correctly that its failure to ascer-
tain whether Alvarez-Moreno’s waiver was knowing, volun-
tary, and intelligent was structural error and inevitably would
result in the reversal of the verdict were there an appeal. See
United States v. Bailon-Santana, 429 F.3d 1258, 1261 (9th
Cir. 2005); United States v. Duarte-Higareda, 113 F.3d 1000,
1003 (9th Cir. 1997). In light of that foreordained outcome if
it allowed the judgment to stand, the district court construed
Alvarez-Moreno’s motion as one for a new trial under Rule
33 of the Federal Rules of Criminal Procedure. So construed,
the district court granted the motion, vacated the conviction,
and ordered a new trial.
Not satisfied, Alvarez-Moreno moved to vacate the new
trial order, arguing that a new trial can be granted under Rule
33 only upon the defendant’s motion. Alvarez-Moreno also
moved to dismiss the indictment, arguing that retrying him
would violate the Constitution’s Double Jeopardy Clause. The
Government agreed that the order granting a new trial was in
error and renewed its suggestion that, instead, the district
court sua sponte order a mistrial. At a subsequent hearing, the
district court disagreed with the parties about whether it could
order a new trial under Rule 33 absent a defendant’s motion,
but also (1) modified its prior order by adding an alternative
basis for ordering a new trial, relying on Rule 26.3 and find-
ing a manifest necessity for declaring a mistrial; and (2)
denied Alvarez-Moreno’s motion to vacate its order granting
a new trial.
Before the second trial occurred, Alvarez-Moreno filed this
appeal. Ordinarily, we do not have jurisdiction to consider
17386 UNITED STATES v. ALVAREZ-MORENO
such an appeal, as our jurisdiction is limited to “final deci-
sions of the district courts,” 28 U.S.C. § 1291, and a final
decision is “a decision by the District Court that ‘ends the liti-
gation on the merits and leaves nothing for the court to do but
execute the judgment.’ ” Midland Asphalt Corp. v. United
States, 489 U.S. 794, 798 (1989) (quoting Van Cauwenberghe
v. Biard, 486 U.S. 517, 521 (1988)). “In criminal cases, this
[final judgment rule] prohibits appellate review until after
conviction and imposition of sentence.” Id.
There is, however, “a narrow exception” to the final judg-
ment rule, the “collateral order doctrine.” Id.
This exception considers as “final judgments,” even
though they do not “end the litigation on the merits,”
decisions “which finally determine claims of right
separate from, and collateral to, rights asserted in the
action, too important to be denied review and too
independent of the cause itself to require that appel-
late jurisdiction be deferred until the whole case is
adjudicated.”
Id. (quoting Cohen v. Beneficial Indus. Loan Corp., 337 U.S.
541, 546 (1949)). Denials of a motion to dismiss on double
jeopardy grounds have long been considered immediately
appealable under the collateral order doctrine, see id.; Abney
v. United States, 431 U.S. 651, 659-62 (1977), so long as the
double jeopardy claim is “at least ‘colorable.’ ” Richardson v.
United States, 468 U.S. 317, 322 (1984) (quoting United
States v. MacDonald, 435 U.S. 850, 862 (1978)). A “color-
able” claim in this context is one for which there is “some
possible validity.” Id. at 326 n.6. We can summarily dismiss
frivolous double jeopardy claims. Id. at 322. Alvarez-Moreno
has moved for dismissal of the indictment on double jeopardy
grounds and, as we explain below, certainly has a colorable
double jeopardy claim. We therefore have jurisdiction. See id.
UNITED STATES v. ALVAREZ-MORENO 17387
I.
[1] The question we must answer is whether retrying
Alvarez-Moreno in the present circumstance would constitute
double jeopardy. His first trial was a bench trial, and so “jeop-
ardy attache[d] when the court beg[an] to hear evidence.” Ser-
fass v. United States, 420 U.S. 377, 388 (1975). In the most
obvious sense, then, if Alvarez-Moreno is retried on these two
counts of transporting an illegal alien for profit, he will be
“subject[ed] for the same offence to be twice put in jeopardy
of life or limb.” U.S. Const. amend. V. But double jeopardy
jurisprudence is not so straightforward. Based on concepts of
consent and “manifest necessity,” the double jeopardy prece-
dents in certain circumstances allow trial courts to order
retrial of criminal defendants because of legal errors in a prior
proceeding. Delving into the consent and manifest necessity
caselaw, we conclude that neither set of cases allows retrial
under the present circumstances.
A.
Once jeopardy has attached, there are generally three ways
that a criminal defendant in federal court can be retried for the
same offense. The first—not directly at issue here, although
its underpinnings are informative to our inquiry—is when the
defendant is retried after a successful appeal or collateral
attack of a conviction.1 “There is no doubt,” in that situation,
“that jeopardy attached when [the defendant] was first tried.”
United States v. Stapleton, 494 F.2d 1269, 1270 (9th Cir.
1974). But “a defendant who appeals and is found entitled to
a new trial has waived his right to claim double jeopardy at
the second trial.” Id. In other words, by appealing or collater-
ally attacking his conviction on the basis of a legal error, the
1
The Double Jeopardy Clause does not allow retrial, however, if the
conviction is overturned because of a failure of proof at trial. See Burks
v. United States, 437 U.S. 1, 16 (1978); see also 6 Wayne R. LaFave et
al., Criminal Procedure § 25.4(b) (3d ed. 2007 & Supp. 2010).
17388 UNITED STATES v. ALVAREZ-MORENO
defendant is taken to have consented to being retried should
he succeed. See id.; see also United States v. Tateo, 377 U.S.
463, 465-66 (1964); Stroud v. United States, 251 U.S. 15, 18
(1919); Murphy v. Massachusetts, 177 U.S. 155, 160 (1900);
see generally LaFave, supra, § 25.4.
B.
[2] The second situation in which a federal defendant can
be retried after jeopardy attaches is if the district court validly
terminates the initial proceeding by declaring a mistrial under
Rule 26.3 of the Federal Rules of Criminal Procedure.2 If that
occurs, the defendant can be retried as long as (1) the mistrial
was justified by “manifest necessity” or was consented to by
the defendant, and (2) there was no judicial or prosecutorial
overreaching aimed at triggering the mistrial. See, e.g., Ore-
gon v. Kennedy, 456 U.S. 667, 672-74 (1982); Illinois v.
Somerville, 410 U.S. 458, 463 (1973); see generally LaFave,
supra, § 25.2.
[3] Rule 26.3 does not state explicitly that a mistrial can be
declared only before a verdict is rendered or a judgment
entered, but that limitation is clearly the implicit assumption.
Justice Story’s seminal opinion in United States v. Perez, 22
U.S. (9 Wheat.) 579 (1824), for example, describes the court’s
power to declare a mistrial as “the authority to discharge a
jury from giving any verdict.” Id. at 580. More recently,
Downum v. United States, 372 U.S. 734 (1963) identified
“[t]he classic example [of] a mistrial” as “the jury [being]
unable to agree.” Id. at 736. Downum went on to list several
other circumstances in which a mistrial may be warranted; all
2
Rule 26.3 provides: “Before ordering a mistrial, the court must give
each defendant and the government an opportunity to comment on the pro-
priety of the order, to state whether that party consents or objects, and to
suggest alternatives.” Fed. R. Crim. P. 26.3. We review de novo a district
court’s interpretation and application of the Federal Rules of Criminal Pro-
cedure. United States v. Navarro Viayra, 365 F.3d 790, 793 (9th Cir.
2004).
UNITED STATES v. ALVAREZ-MORENO 17389
concern events that occur between the time jeopardy attaches
and a verdict is rendered. See id. Dictionary definitions, too,
presume that a mistrial must be declared pre-verdict. See, e.g.,
Black’s Law Dictionary (9th ed. 2009) (defining “mistrial” as
“1. A trial that the judge brings to an end, without a determi-
nation on the merits, because of a procedural error or serious
misconduct occurring during the proceedings. 2. A trial that
ends inconclusively because the jury cannot agree on a ver-
dict.”).
Moreover, the requirement that a mistrial be declared only
if there is “manifest necessity” necessarily assumes that such
a declaration may come only before the conviction. Permit-
ting the court to declare a mistrial after the conviction has
been determined would violate traditional waiver principles
and circumvent the Federal Rules of Criminal Procedure.
[4] Instead of coming within the authority to grant a mis-
trial, as explained below, the district court’s authority to order
a new trial after a verdict has been entered is governed by
Rule 33. Insofar as the district court’s order for a new trial of
Alvarez-Moreno was premised on the post-verdict declaration
of a mistrial, therefore, it was error.
C.
[5] Third and finally, a federal defendant can be retried
after jeopardy attaches if, after the verdict has been rendered
or the judgment has been entered, the district court grants his
motion under Rule 33 for a new trial. Rule 33 provides:
“Upon the defendant’s motion, the court may vacate any judg-
ment and grant a new trial if the interest of justice so
requires.” Fed. R. Crim. P. 33(a) (emphasis added). The Advi-
sory Committee’s notes to the 1966 amendments to Rule 33,
which added the phrase “Upon the defendant’s motion” to the
Rule, explain the justification for insisting that any motion for
a new trial be made by the defendant himself:
17390 UNITED STATES v. ALVAREZ-MORENO
[T]he first two sentences [of subsection (a)] make it
clear that a judge has no power to order a new trial
on his own motion, that he can only act in response
to a motion timely made by the defendant. Problems
of double jeopardy arise when the court acts on its
own motion.
Fed. R. Crim. P. 33 advisory committee’s notes (1966 amend-
ments).
[6] In support of the proposition that “[p]roblems of double
jeopardy arise when the court acts on its own motion,” the
Advisory Committee’s notes cite United States v. Smith, 331
U.S. 469 (1947). In Smith, the defendant argued that even
though Rule 33 required him to move for a new trial within
five days of the verdict, the trial court could order a new trial
on its own motion at any time. See Smith, 331 U.S. at 473.
Smith rejected such a construction of Rule 33 for a number of
reasons, including that it would raise Double Jeopardy con-
cerns:
[I]t would be a strange rule which deprived a judge
of power to do what was asked when request was
made by the person most concerned, and yet allowed
him to act without petition. If a condition of the
power is that request for its exercise be not made,
serious constitutional issues would be raised. For it
is such request which obviates any later objection the
defendant might make on the ground of double jeop-
ardy.
Id. at 474 (citing Murphy, 177 U.S. at 160 (1900) and Ex
parte Lange, 85 U.S. (18 Wall.) 163 (1873)). In other words,
Smith explains that—as with retrial after reversal on appeal—
the defendant’s consent is the reason double jeopardy is not
implicated when the court grants his motion for a new trial
under Rule 33. For that reason, a new trial can only be granted
under that Rule upon a defendant’s motion.
UNITED STATES v. ALVAREZ-MORENO 17391
[7] Emphasizing this principle—that a Rule 33 motion can
be made only by a defendant Navarro Viayra held that a dis-
trict court may not convert a defendant’s motion under Rule
29 for judgment of acquittal into a Rule 33 motion for a new
trial. See 365 F.3d at 795. We must reach a similar conclusion
here. Although Alvarez-Moreno declined to specify in his
motion what remedy he wanted, he was explicit and emphatic
in the hearing before the district court that he did not want a
new trial, and he moved to vacate the new trial order on dou-
ble jeopardy grounds once it was issued. The district court
therefore erred in converting Alvarez-Moreno’s motion, over
his objection, into a Rule 33 motion for a new trial.
II.
[8] We are sympathetic to the situation the district court
found itself in. A clear legal error had occurred. If and when
Alvarez-Moreno appealed, the conviction would have been
overturned and the case remanded for a new trial. Under such
circumstances, it undoubtedly seemed preferable to cut to the
chase and simply order a new trial. But once jeopardy has
attached, “the defendant retain[s] primary control over the
course to be followed in the event of . . . error.” United States
v. Dinitiz, 424 U.S. 600, 609 (1976). The district court’s deci-
sion, although understandable, deprived Alvarez-Moreno of
any such control.3
3
Considering a counterfactual demonstrates the danger in sanctioning
the district court’s grant of a new trial in these circumstances: If Alvarez-
Moreno had not taken an interlocutory appeal, and was retried and con-
victed at the second trial ordered by the district court. Alvarez-Moreno
would no doubt appeal and have a strong argument that because he never
consented, his second trial violated double jeopardy. See, e.g., United
States v. Patterson, 381 F.3d 859, 862-63 (9th Cir. 2004). But insofar as
the first trial was invalid, too, because of the insufficient waiver of the
right to a jury trial, see Bailon-Santana, 429 F.3d at 1261; Duarte-
Higareda, 113 F.3d at 1003, properly convicting Alvarez-Moreno likely
would require a third trial (assuming a third trial even would be permissi-
ble in such circumstances). Better, in our view, to engage in a little formal-
ism now to avoid a bigger quagmire in the future.
17392 UNITED STATES v. ALVAREZ-MORENO
[9] We therefore vacate the district court’s December 11,
2009 order that set aside the conviction and ordered a new
trial under Rule 33, as well as its January 26, 2010 order that
also justified the new trial by declaring the first proceeding a
mistrial under Rule 26.3. We remand with instructions to
deny Alvarez-Moreno’s “Motion to Set Aside Verdict by
Trial Court,” which cites no rule or authority and was proce-
durally improper. If Alvarez-Moreno wants to correct the
legal error, he can make a proper motion under Rule 33 for
a new trial, or he can appeal the final judgment after he is sen-
tenced; in either event, under the principles discussed earlier,
he would have consented to retrial. Alternatively, Alvarez-
Moreno may view those two routes as merely prolonging the
inevitable, and so may decide that he does not want to
undergo the stress of another trial. If so, he is, of course,
entirely free to forego any Rule 33 motion or appeal and
accept the sentence meted out on the basis of the conviction
after it is reinstated upon remand. That sentence would “not
[be] void, but voidable, and if the sentence [is] complied with
he could not [be] punished again for the same offense.” Mur-
phy, 177 U.S. at 160.
REMANDED.