United States v. Chris Ganos and Jerome P. Chernoff

961 F.2d 1284

• Court: Court of Appeals for the Seventh Circuit
• Decided: May 18, 1992
• Docket: 91-3239 and 91-3241
• Status: Published

Opinions

PER CURIAM.

The jury in the criminal trial of Chris Ganos, Jerome Chernoff, and five others returned a verdict of guilty. Defendants filed post-verdict motions seeking acquittal on the ground of insufficient evidence and a “mistrial” on the ground that the jurors viewed unauthorized materials during their deliberations. The district court denied the motion for acquittal and granted the misnamed motion for a mistrial. As the trial was over a mistrial was impossible, but the court could and did grant a new trial.

Before the retrial could commence, Ga-nos and Chernoff filed notices of appeal, contending that a new trial after an initial trial at which the evidence was insufficient would violate the double jeopardy clause. See Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978). The United States contends that we lack jurisdiction to entertain the appeals.

An order setting a case for a second trial is not final by ordinary standards, so unless thé decision is a “collateral order” within the scope of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), the appeals are untenable. An order rejecting a claim of double jeopardy may be a collateral order under Cohen, see Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977), but only if the claim is colorable. United States v. MacDonald, 435 U.S. 850, 862, 98 S.Ct. 1547, 1554, 56 L.Ed.2d 18 (1978). Courts of appeals may and should weed out frivolous appeals, to facilitate the prompt administration of justice in the district courts. Abney, 431 U.S. at 662 n. 8, 97 S.Ct. at 2042 n. 8.

The double jeopardy claim urged on us is frivolous, which also defeats the existence of jurisdiction. Richardson v. United States, 468 U.S. 317, 104 S.Ct. 3081, 82 L.Ed.2d 242 (1984), holds that the double jeopardy clause does not prevent the holding of a second trial when no court has determined that the evidence at the first trial was insufficient. An appeal in search of such a decision accordingly is not an invocation of the double jeopardy clause; it is an ordinary challenge to the sufficiency of the evidence. Richardson explained: “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.... 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.” 468 U.S. at 326 n. 6, 104 S.Ct. at 3086 n. 6.

Ganos and Chernoff are in precisely the same position as Richardson: facing a second trial, they crave (but have not obtained) a declaration that the evidence at the first was insufficient. Richardson holds that the double jeopardy clause never bars the second trial in such cases, so there is no possibility of an appeal under Abney. Ganos and Chernoff ignore Richardson in both their opening briefs and their reply brief. The generalized Cohen argument in their reply brief hardly survives the express conclusion of Richardson.

The appeals are dismissed for want of jurisdiction. So that the district court may proceed with the retrial of all defendants, the mandate will issue forthwith.