United States of America, Plaintiff-appellant, v. Dean E. Lillie, Defendant-appellee, 53 F.3d 340 (9th Cir. 1995)

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US Court of Appeals for the Ninth Circuit - 53 F.3d 340 (9th Cir. 1995) Submitted April 19, 1995. *Decided April 27, 1995

Before: BROWNING, SNEED, and T.G. NELSON, Circuit Judges.


MEMORANDUM** 

The United States appeals the district court's order denying its motion to set for retrial the case of Dean Lillie. Lillie's conviction for tax evasion and conspiracy to obstruct the Internal Revenue Service was previously reversed on appeal because Lillie was denied his choice of retained counsel. United States v. Lillie, 989 F.2d 1054 (9th Cir. 1993).

The United States contends that the district court erred by deciding that it lacked authority to retry Lillie because our previous decision and mandate did not specifically order remanding for retrial. Lillie argues that the law of the case doctrine and the mandate rule preclude us from entertaining the government's appeal and that a second trial is barred by the Double Jeopardy Clause.

Essentially the same arguments were raised in the United States' appeal of the district court's denial of the United States' motion to retry Lillie's codefendants. United States v. Cote, No. 93-30441, slip op. 2889 (9th Cir. March 16, 1995). Accordingly, we reverse and remand for the reasons stated in Cote. Id. at 2893-99.

REVERSED and REMANDED.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); 9th Cir. R. 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3