Appeal from the United States District Court for the District of Arizona Frank R. Zapata, Senior District Judge, Presiding D.C. No. 4:08-cr-01482-FRZ-GEE-1
The opinion of the court was delivered by: Berzon, Circuit Judge:
March 16, 2011-San Francisco, California
Before: Richard A. Paez, Marsha S. Berzon, and Carlos T. Bea, Circuit Judges.
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 "Motion 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 district 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 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 ascertain whether Alvarez-Moreno's waiver was knowing, voluntary, 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 ...