Unpublished Disposition, 927 F.2d 610 (9th Cir. 1991)

MEMORANDUM^* 

The Superior Court of Guam acquitted the defendant of third-degree theft because the government failed to prove the value of the item allegedly stolen. The district court, appellate division, dismissed the government's appeal for lack of jurisdiction. We affirm.

The government indicted the defendant, Kenneth Camacho, for third-degree theft under 9 Guam Code Ann. Secs. 43.20(b), 43.30(a) (1985). The government alleged that Camacho had stolen a bull worth between $500 and $1,500. At the jury trial, after the government rested, Camacho moved for a judgment of acquittal because the government failed to prove the value of the bull. After hearing argument, the court granted the motion, dismissed the jury and entered judgment of acquittal, even though Guam law requires the court to charge the jury with respect to a lesser included offense whenever "there is a rational basis for acquitting the defendant of an offense charged and convicting him of an included offense." 8 Guam Code Ann. Sec. 90.27 (1987). The presiding judge of the district court, appellate division, dismissed the appeal for lack of jurisdiction, because the appellate statute provides for jurisdiction only if a retrial would not be barred by the Double Jeopardy Clause.

* The government contends that a three-judge court was required to determine the jurisdictional issue in this case. Whether a three-judge court was required is a question of law, which we review de novo. United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (en banc), cert. denied, 468 U.S. 824 (1984).

48 U.S.C. § 1424-3(b) provides that the presiding judge of the appellate division of the Guam district court may dismiss an appeal for want of jurisdiction. Nevertheless, the government argues that a three-judge panel should have addressed the issue. The government's brief cites no relevant authority to support its position. In effect, the government asserts that every appeal from an acquittal should be decided by a three-judge court.

The statute incorporating the concept of double jeopardy is jurisdictional. See 48 U.S.C. § 1493 (1988). The same statute provides that the Presiding Judge alone may rule on motions to dismiss for lack of jurisdiction. See id. Sec. 1424-3(b). It appears that one-judge review of double jeopardy issues was contemplated by the legislature. We reject the government's contention that a three-judge court was required to decide this case.

II

The government also contends that the trial court erred in not submitting the case to the jury in order to allow the jury to address the lesser included offense of petty theft. The government asks us to conclude that the case ended in a mistrial, not a true acquittal. Camacho argues that a retrial would offend double jeopardy. Whether the Double Jeopardy Clause bars appeal and retrial is reviewed de novo. United States v. Affinito, 873 F.2d 1261, 1263 (9th Cir. 1989).

The Double Jeopardy Clause affords the defendant who obtains a judgment of acquittal at the trial level absolute immunity from further prosecution for the same offense. Lockhart v. Nelson, 488 U.S. 33, 39 (1988). Similarly, if a guilty verdict is overturned on appeal for insufficiency of the evidence, the defendant is immune from further prosecution for the same offense. Burks v. United States, 437 U.S. 1, 15, 17 (1978).

Where the same act or transaction violates two statutory provisions, there are two separate offenses only where each provision requires proof of a fact that the other does not. Grady v. Corbin, 110 S. Ct. 2084, 2090 (1990); Blockburger v. United States, 284 U.S. 299, 304 (1932). Thus, a lesser included offense is the "same offense" as the greater offense for double jeopardy purposes. Brown v. Ohio, 432 U.S. 161, 169 (1977). A defendant may be retried, however, after a mistrial. Richardson v. United States, 468 U.S. 317, 324 (1984).

Under Guam law, third-degree theft requires proof that the item stolen has a value of between $500 and $1,500. Petty theft requires no proof of value. Compare 9 Guam Code Ann. Sec. 43.20(b) with id. Sec. 43.20(d). The trial court granted Camacho's motion for a judgment of acquittal on the charge of third-degree theft because the government failed to prove the value of the allegedly stolen animal. Guam criminal-procedure, however, like its federal counterpart, would have allowed the jury to convict Camacho of the lesser included charge of petty theft. See 8 Guam Code Ann. Sec. 105.54 (1985). In fact, Guam law requires the court to charge the jury with respect to a lesser included offense whenever "there is a rational basis for acquitting the defendant of an offense charged and convicting him of an included offense." 8 Guam Code Ann. Sec. 90.27 (1987).

This court addressed a related issue in United States v. Gooday, 714 F.2d 80 (9th Cir. 1983). In Gooday, a jury acquitted a defendant on the charge of first-degree murder, but could not reach a verdict on three lesser included offenses. We noted that:

If no instructions are given on lesser included offenses, the jury's verdict is limited to whether the defendant committed the crime explicitly charged in the indictment. In such cases, an acquittal on the crime explicitly charged necessarily implies an acquittal on all lesser offenses included within that charge. In re Nielsen, 131 U.S. 176, 189-90, 9 S. Ct. 672, 676-77, 33 L. Ed. 118 (1889). An acquittal on the explicit charge therefore bars subsequent indictment on the implicit lesser included offenses. Id. Gooday, 714 F.2d at 82. We went on to hold, however, that acquittal on the greater offense does not bar a retrial on lesser included offenses when the jury explicitly considers the lesser included offenses and cannot reach a verdict. Id. at 82-83.¹ 

In Lee v. United States, 432 U.S. 23 (1977), the defendant moved, after the presentation of evidence, to dismiss the information for failure to provide adequate notice. The Supreme Court held that the dismissal was functionally equivalent to a mistrial because it did not terminate "in the defendant's favor." Id. at 28-31. According to the Supreme Court, the distinction between a mistrial and acquittal for double jeopardy purposes does not turn on the label assigned by the trial court.

The critical question is whether the order contemplates an end to all prosecution of the defendant for the offense charged.... Where a midtrial dismissal is based on the ground, correct or not, that the defendant simply cannot be convicted of the offense charged, ... further prosecution is barred by the Double Jeopardy Clause.

Id. at 30; see also Sanabria v. United States, 437 U.S. 54, 69 (1978) (judgment of acquittal, however erroneous, bars further prosecution on any aspect of the count and hence bars appellate review).

The trial court did not resolve any factual element of the lesser offense in Camacho's favor. For this reason, we agree with the government that Camacho was not acquitted on the lesser offense. See United States v. Affinito, 873 F.2d 1261, 1264 (9th Cir. 1989) ("A defendant is acquitted and a government appeal barred ... when the judge's ruling, whatever its label, actually represents a resolution in defendant's favor, correct or not, of some or all of the factual elements of the charged offense.").

Nevertheless, Camacho had the right to have his trial completed by a particular tribunal. United States v. Jorn, 400 U.S. 470, 484 (1971); United States v. Govro, 833 F.2d 135, 137 (9th Cir. 1987). Double jeopardy thus bars a retrial unless Camacho explicitly or implicitly waived that right.

Where a defendant seeks to terminate the trial without having guilt or innocence determined by the judge or jury, the defendant waives the right to be tried by that tribunal. United States v. Scott, 437 U.S. 82, 101 (1978). Camacho moved for an acquittal, or, in the alternative, for the lesser charge to be submitted to the jury. Camacho did not waive his right to have his guilt or innocence determined by the first jury empaneled. Therefore, the error in Camacho's trial cannot be corrected without offending the Double Jeopardy Clause.

Because the district court, appellate division, correctly determined that a retrial would offend double jeopardy, the dismissal of the government's appeal is AFFIRMED.