- Court: 9th Circuit Court of Appeals Archives
- Area(s) of Law: Constitutional Law
- Date Filed: 09-13-2011
- Case #: 10-10045
- Judge(s)/Court Below: Circuit Judge Berzon for the Court; Circuit Judges Paez and Bea
- Full Text Opinion
In a “thorny double jeopardy issue,” Gabriel Alvarez-Moreno appealed an order for a new trial following a guilty verdict in a bench trial. Alvarez-Moreno’s counsel moved the trial court to set aside the conviction, because Alvarez-Moreno did not properly waive his right to a jury trial and the judge never examined the accused to make sure he was “voluntarily, knowingly, and intelligently waiving his right” to a jury trial. Recognizing the validity of the claim, the district court treated defendant’s motion as that for a new trial, vacated the initial conviction, and ordered a new trial. Defendant filed an interlocutory appeal arguing that only the defendant can make a motion for a new trial, that jeopardy attached at the first trial, and that a new trial would constitute double jeopardy. The Ninth Circuit recognized three situations where the accused may be tried twice for the same crime without raising double jeopardy issues: (1) “a successful appeal or collateral attack of a conviction,” (2) a pre-verdict mistrial declared under FRCP Rule 26.3, or (3) under FRCP Rule 33 where “[u]pon the defendant’s motion, the court may . . . grant a new trial.” The Court recognized the district court judge’s intent in ordering a new trial, but reasoned that “once jeopardy has attached, ‘the defendant retain[s] primary control over the course to be followed in the event of . . . error.” The Court noted that Alvarez-Moreno is free to pursue other specific remedies regarding the legal error in waiving a jury trial. REMANDED.