USA v. Cirilo Flores-Perez

Filing

FILED OPINION (J. CLIFFORD WALLACE, SUSAN P. GRABER and RICHARD MILLS) DISMISSED. Judge: JCW , Judge: SPG , Judge: RM Authoring. FILED AND ENTERED JUDGMENT. [7792306]

Case: 10-50246 06/21/2011 Page: 1 of 10

ID: 7792306 DktEntry: 22-1

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CIRILO FLORES-PEREZ,
Defendant-Appellant.





No. 10-50246
D.C. No.
3:09-CR-03487DMS
OPINION

Appeal from the United States District Court
for the Southern District of California
Dana M. Sabraw, District Judge, Presiding
Argued and Submitted
November 2, 2010—Pasadena, California
Filed June 21, 2011
Before: J. Clifford Wallace and Susan P. Graber, Circuit
Judges, and Richard Mills,* Senior District Judge.
Opinion by Judge Mills

*The Honorable Richard Mills, Senior United States District Judge for
the Central District of Illinois, sitting by designation.

8421

Case: 10-50246 06/21/2011 Page: 2 of 10

ID: 7792306 DktEntry: 22-1

UNITED STATES v. FLORES-PEREZ

8423

COUNSEL
Devin J. Burstein, Federal Defenders of San Diego, Inc., San
Diego, California, for the defendant-appellant.
Scott M. Lesowitz, Assistant United States Attorney, San
Diego, California, for the plaintiff-appellee.

OPINION
MILLS, Senior District Judge:
In this appeal, Defendant Cirilo Flores-Perez (“Flores”)
seeks interlocutory appellate review of the district court’s
denial of his motion to dismiss the superseding indictment on
double jeopardy grounds.
We dismiss for want of appellate jurisdiction.
I
Flores was arrested on September 13, 2009, by Customs
and Border Protection agents. Flores invoked his right to

Case: 10-50246 06/21/2011 Page: 3 of 10

8424

ID: 7792306 DktEntry: 22-1

UNITED STATES v. FLORES-PEREZ

remain silent and was charged in a one-count indictment with
attempting to transport an illegal alien.
Flores pleaded not guilty and proceeded to trial. At the
close of the Government’s evidence, Flores moved for a judgment of acquittal under Federal Rule of Criminal Procedure
29, which the district court denied.
The trial resulted in a hung jury, split nine to three in favor
of acquittal. Flores renewed his Rule 29 motion, claiming that
there was insufficient evidence of guilt. The motion was again
denied by the district court.
On March 24, 2010, Flores was arraigned on a four-count
superseding indictment, charging him with (1) conspiring to
transport illegal aliens and conspiring to bring illegal aliens
into the United States for financial gain; (2) bringing illegal
aliens into the United States for financial gain; (3) transporting illegal aliens; and (4) attempting to transport illegal aliens.
Again, Flores pleaded not guilty to the charges, and he also
moved the district court to dismiss the superseding indictment
on double jeopardy grounds. The district court denied that
motion, and Flores then pursued this appeal.
During the initial stages of this appeal, the Government
moved to dismiss the appeal for lack of jurisdiction. The issue
was fully briefed and, on July 30, 2010, Appellate Commissioner Peter L. Shaw denied the motion without prejudice to
the renewal of the jurisdictional issue in the answering brief.
The Government raised the jurisdictional issue in its brief
and at oral argument.
II
A
[1] A district court’s denial of a motion to dismiss an
indictment on double jeopardy grounds is considered a final

Case: 10-50246 06/21/2011 Page: 4 of 10

ID: 7792306 DktEntry: 22-1

UNITED STATES v. FLORES-PEREZ

8425

decision, because it falls within the collateral order exception
to the final judgment rule. See Abney v. United States, 431
U.S. 651, 657-62 (1977). However, in order to be appealable
before final judgment, a double jeopardy claim must be “colorable.” For a claim to be colorable, a defendant must show
that (1) the original jeopardy has terminated, and (2) the
defendant is again in jeopardy for the same crime. A defendant cannot raise a colorable double jeopardy claim that relies
upon an assertion that the district court erroneously denied a
motion for acquittal. Richardson v. United States, 468 U.S.
317 (1984).
In Richardson, the first trial resulted in a hung jury, and the
district court declared a mistrial and scheduled a retrial. Id. at
318-19. In response, the defendant moved for acquittal, arguing that insufficient evidence was presented for conviction. Id.
at 319. The defendant also argued that retrial was barred by
the Double Jeopardy Clause of the Fifth Amendment. Id. The
district court denied the motion. Id.
The District of Columbia Circuit dismissed the appeal for
want of jurisdiction. The court reasoned that it could not hear
the double jeopardy claim because it lacked jurisdiction to
review the district court’s denial of the acquittal motion. Id.
at 319-20.
[2] The Supreme Court reversed the D.C. Circuit on the
jurisdictional issue. Id. at 326. The Supreme Court held that
double jeopardy is not implicated in cases involving mistrials
due to hung juries, because there is no termination of the original jeopardy in those cases. Id. at 325. The Court stated that,
“[r]egardless of the sufficiency of the evidence at petitioner’s
first trial, he has no valid double jeopardy claim to prevent his
retrial.” Id. at 326.
The Supreme Court then gave this additional guidance in a
footnote:

Case: 10-50246 06/21/2011 Page: 5 of 10

8426

ID: 7792306 DktEntry: 22-1

UNITED STATES v. FLORES-PEREZ

It follows logically from our holding today that
claims of double jeopardy such as petitioner’s are no
longer “colorable” double jeopardy claims which
may be appealed before final judgment. A colorable
claim, of course, presupposes that there is some possible validity to a claim. Since no set of facts will
support the assertion of a claim of double jeopardy
like petitioner’s in the future, there is no possibility
that a defendant’s double jeopardy rights will be violated by a new trial, and there is little need to interpose the delay of appellate review before a second
trial can begin.
Id. at 326 n.6 (citations omitted). Therefore, under Richardson, double jeopardy claims asserting termination of jeopardy
due to a hung jury and associated mistrial are no longer colorable.
We have adopted the holding of Richardson in several
opinions. In United States v. Schemenauer, we held that,
regardless of sufficiency of the evidence at a first trial, the
defendant did not have a colorable double jeopardy claim following a mistrial due to a deadlocked jury. As a result, we
lacked jurisdiction to hear the interlocutory appeal. 394 F.3d
746, 749-50 (9th Cir. 2005) (“Footnote 6 in Richardson
squarely forecloses our interlocutory jurisdiction to consider
Schemenauer’s appeal.”).
In United States v. Recio, we stated the following:
Richardson held that a second trial following a hungjury mistrial does not violate the Double Jeopardy
Clause if, at the time the second trial begins, no court
has ruled the government’s first-trial evidence insufficient. Richardson also held that appellate courts
may no longer exercise jurisdiction over interlocutory insufficiency appeals taken before a second trial
has begun.

Case: 10-50246 06/21/2011 Page: 6 of 10

ID: 7792306 DktEntry: 22-1

UNITED STATES v. FLORES-PEREZ

8427

371 F.3d 1093, 1104 (9th Cir. 2004) (citation omitted).
[3] Flores argues that Richardson and its progeny are not
controlling because he is appealing the denial of his motion
to dismiss the superseding indictment, not his Rule 29 acquittal motion. Flores’ argument is not convincing. It is true that
Flores has appealed the denial of the motion to dismiss the
superseding indictment, and Flores claims that the filing of
the superseding indictment creates a colorable double jeopardy claim. However, the crux of Flores’ argument regarding
the superseding indictment relates almost entirely to the district court’s allegedly erroneous denial of his Rule 29 motion.
Flores argues that if his Rule 29 motion had been granted,
double jeopardy would bar trial on the counts contained in the
superseding indictment.
[4] Under Flores’ view of the appeal, the merits of the
Rule 29 motion must be reached in order to resolve the double
jeopardy claim. As a result, Flores has devoted a significant
portion of his briefing to arguing that the district court erroneously denied his Rule 29 motion. For the most part, then, this
appeal is really an appeal of the district court’s denial of the
Rule 29 motion, dressed in the clothing of a double jeopardy
claim. Accordingly, interlocutory review is prohibited under
Richardson.
B
Flores’ analogy to the prohibition against the filing of a
superseding indictment during trial is not persuasive. The
Eleventh Circuit confronted a similar contention in United
States v. Corona, and rejected that argument:
Changes in the substance of the indictment, therefore, should not be foisted upon a defendant after
trial begins. However, this rationale does not apply
in the current context. After a mistrial because the
jury hung or for any other such reason, the defendant

Case: 10-50246 06/21/2011 Page: 7 of 10

8428

ID: 7792306 DktEntry: 22-1

UNITED STATES v. FLORES-PEREZ

would have ample time to prepare for his defense
under a superseding indictment. Therefore, even
though jeopardy has attached to the defendant, the
practical effect of a superseding indictment after a
hung jury is no different from one returned with
ample time before a trial on the merits.
We now set forth the proper application of the two
principles of law to this case. Since the mistrial here
as a result of the hung jury did not terminate the
jeopardy which had attached to the defendants, the
retrial of the defendants was not double jeopardy.
Since the superseding indictment allowed ample
time for defendants’ preparation prior to retrial, it
was analogous to a superseding indictment before
trial and was not analogous to a superseding indictment during trial.
804 F.2d 1568, 1570 (11th Cir. 1986) (citation omitted)
In Howard v. United States, 372 F.2d 294 (9th Cir. 1967),
we held that a superseding indictment with new charges following a mistrial does not violate the Double Jeopardy
Clause. Flores’ attempts to distinguish Corona and Howard
are similarly unpersuasive.
[5] We hold that the filing of a superseding indictment
after mistrial does not raise a colorable double jeopardy claim.
C
Flores seeks to evade the overwhelming weight of authority
by raising a somewhat novel argument — original jeopardy
terminated when the superseding indictment was filed. However, as Flores admits, he is unable to produce any authority
directly holding that the filing of a superseding indictment
after a hung jury terminates the original jeopardy from the
first trial.

Case: 10-50246 06/21/2011 Page: 8 of 10

ID: 7792306 DktEntry: 22-1

UNITED STATES v. FLORES-PEREZ

8429

Flores has directed our attention to United States v. Vavlitis, 9 F.3d 206 (1st Cir. 1993), arguing that the case indirectly
supports his contention that a post-mistrial superseding indictment terminates original jeopardy. However, in that case, the
First Circuit explicitly stated the following regarding the
effect of a superseding indictment upon the original indictment:
It is clear that the grand jury’s return of a superseding indictment does not void the original indictment. A defendant may use the Double Jeopardy
Clause to prevent reprosecution following an acquittal or conviction on a superseding indictment, but
may not rely on the notion that a superseding indictment instantaneously nullifies the original indictment.
Id. at 209 (citation omitted) (emphasis added).
[6] Other circuits have also rejected the argument that a
superseding indictment terminates the original indictment.
The Third Circuit explained the following in United States v.
Cerilli:
Although it is difficult to discern their precise contentions, the defendants, in effect, maintain that,
since the original indictment has not yet been formally dismissed, and because jeopardy had attached
in the proceedings under that indictment, any prosecution under the subsequent indictment would
expose them to double jeopardy. We cannot, however, adopt the position advanced by the defendants.
558 F.2d 697, 700 (3d Cir. 1977) (per curiam). The court
elaborated in a footnote:
Alternatively, the defendants appear to contend
that the issuance of the “superseding” indictment

Case: 10-50246 06/21/2011 Page: 9 of 10

8430

ID: 7792306 DktEntry: 22-1

UNITED STATES v. FLORES-PEREZ

necessarily constitutes the dismissal of the original
indictment. Continuing this line of reasoning, they
claim that, because jeopardy attached under the first
indictment, and as the first indictment has, in effect,
been dismissed, no prosecution is possible under the
second indictment or, presumably, under any other
one.
The defendants’ argument in this regard is not
convincing, especially in the absence of any authority for such a theory. As we understand it, there are
two pending indictments against the defendants, and
the government may select one of them with which
to proceed to trial.
Id. at 700 n.3; see also United States v. Bowen, 946 F.2d 734,
736 (10th Cir. 1991) (“We have found no authority which
supports the proposition that a superseding indictment zaps an
earlier indictment to the end that the earlier indictment somehow vanishes into thin air.”).
[7] Flores is unable to produce any authority to support
this argument, and in the face of contrary authority from at
least three circuits, we hold that a superseding indictment
does not nullify an original indictment. We further hold that
the issuance of a superseding indictment does not terminate
the original jeopardy. Without the termination of the original
jeopardy, no colorable claim of double jeopardy can be made.
See Richardson, 468 U.S. at 325. Without a colorable double
jeopardy claim, the Defendant cannot bring this claim on
appeal. See id. at 326 n.6.
III
[8] In summary, we hold that we lack jurisdiction to
review the district court’s denial of the motion for acquittal.
We further hold that the issuance of a superseding indictment following a mistrial does not create a colorable double

Case: 10-50246 06/21/2011 Page: 10 of 10

ID: 7792306 DktEntry: 22-1

UNITED STATES v. FLORES-PEREZ

8431

jeopardy claim, because the issuance of a superseding indictment does not nullify the original indictment, and because the
issuance of a superseding indictment does not terminate the
original jeopardy.
Therefore, we dismiss this appeal for want of jurisdiction.
DISMISSED.