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United States v. Serrano

United States Court of Appeals, Second Circuit

May 10, 2017

United States of America, Appellee,
v.
Pedro Serrano, a/k/a "Louis Ortiz/' Defendant-Appellant.

          Argued: April 25, 2017

         On Appeal from the United States District Court for the Southern District of New York

         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.

          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.

          Before: KEARSE, CALABRESI and CABRANES, Circuit Judges.

          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 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.

         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]

         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 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.

         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 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 ...


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