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No. 07-515

 

In the Supreme Court of the United States

DANIEL E. CARPENTER, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

PAUL D. CLEMENT
Solicitor General
Counsel of Record
ALICE S. FISHER
Assistant Attorney General
DAVID E. HOLLAR
Attorney
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTIONS PRESENTED

1. Whether the denial of a criminal defendant's mo tion for acquittal is subject to immediate interlocutory appeal under the collateral order doctrine when the district court has granted the defendant's alternative motion for a new trial.

2. Whether the government's interlocutory appeal of a district court order granting a new trial entitles a defendant to cross-appeal the denial of his motion for ac quittal.

In the Supreme Court of the United States

No. 07-515

DANIEL E. CARPENTER, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-46a) is reported at 494 F.3d 13. The opinion of the district court (Pet. App. 47a-88a) is reported at 405 F. Supp. 2d 85.

JURISDICTION

The judgment of the court of appeals was entered on July 18, 2007. The petition for a writ of certiorari was filed on October 16, 2007. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

Following a trial in the United States District Court for the District of Massachusetts, a jury found petitioner guilty of fourteen counts of mail fraud, in violation of 18 U.S.C. 1341, and five counts of wire fraud, in violation of 18 U.S.C. 1343. Post-trial, the district court denied peti tioner's motion for acquittal but granted his motion for a new trial. Pet. App. 47a-88a. The government ap pealed the new trial order, and petitioner cross-appealed the denial of his acquittal motion. The court of appeals affirmed the district court's grant of a new trial and dis missed the cross-appeal for lack of jurisdiction. Pet. App. 1a-46a.

1. Section 1031 of the Internal Revenue Code, Title 26 U.S.C., allows a person to sell commercial property but defer the capital gains tax if he uses the proceeds to purchase replacement property within 180 days. I.R.C. 1031(a)(3). To be eligible for this tax deferral, the seller cannot take possession of the proceeds during the 180- day window. Accordingly, so-called Section 1031 inter mediaries offer their services to hold the proceeds in escrow until the seller is ready to purchase replacement property. Pet. App. 2a.

Petitioner served as chairman of Benistar Property Exchange Trust Company (BPE), one such Section 1031 intermediary. BPE's written agreements with its clients provided that the proceeds from their initial property sales would go directly to BPE. BPE was to hold those funds in a Merrill Lynch Ready Asset Money Market Account paying 3% interest (if the client wanted access to the funds on 48 hours' notice) or a Merrill Lynch In vestment Account paying 6% interest (if the client was willing to wait 30 days for the funds). Pet. App. 2a-3a. BPE was to release the funds-either to the client or to the seller of replacement property-only on the client's written direction. C.A. App. 241, 254.

The trial evidence showed that petitioner had little direct contact with clients but approved almost all writ ten materials that clients received from BPE. Pet. App. 3a; Gov't C.A. Br. 4-7. Petitioner was primarily respon sible for receiving, holding, and disbursing clients' funds. In this capacity, he began to use those funds (without the clients' knowledge) for high-risk, specula tive trading in stock options. Apparently, his intent was to return the clients' funds and specified interest to them, while keeping for himself the trading profits, which he hoped would exceed $1 million. Pet. App. 3a- 4a; C.A. App. 391.

Petitioner first opened accounts at Merrill Lynch, which warned him orally and in writing that his stock option trading was extremely risky. The Merrill Lynch brokers counseled petitioner further on the dangers of his investment strategy when, in 2000, the stock market began a downturn. Petitioner continued the same high- risk trading activity and, after he had lost $4 million, Merrill Lynch terminated his trading privileges. Pet. App. 3a.

Petitioner then opened an account with Paine Web ber with a similar plan and similar results. Petitioner engaged in high-risk options trading, despite warnings from Paine Webber, and his trading privileges were ter minated after he sustained heavy losses. Although peti tioner initially repaid outgoing clients with incoming client funds, the trading losses became so great that BPE was forced to close. BPE's clients lost approxi mately $9 million of the funds BPE held for them. Pet. App. 4a.

2. The government's theory at trial was that peti tioner knew that promotional materials for BPE that he had seen and approved represented to investors-or misled them into believing-that their funds would be held safely in escrow accounts. More specifically, evi dence presented at trial showed that petitioner knew that none of the documentation BPE provided clients disclosed that their funds would be invested in high risk options trading. In other words, petitioner schemed to obtain money to pursue his risky financial ventures by falsely concealing that material fact from clients who thought their money instead "would be held safely in escrow accounts." Pet. App. 60a. To support its theory, the government introduced evidence at trial of peti tioner's high-risk trading activity to demonstrate the falsity of many of the representations in BPE's litera ture that investor funds would be "kept safe." Id. at 6a.

Petitioner contended, among other things, that be cause the written agreements referred to the client money in either the 3% or 6% escrow accounts as "in vested" he had "total [] unfettered discretion" to "in vest" those funds in options if he so desired. At a mini mum, he alleged, he believed in good faith that he had the right to make risky investments, and thus lacked the intent to defraud. Pet. App. 5a; C.A. App. 91, 99, 101, 152, 154-156.

In its closing argument, the government focused on petitioner's options trading activity after he had re ceived warnings from brokers and contrasted this with petitioner's knowledge of the purpose of a Section 1031 intermediary to safely and securely hold funds in es crow. In this context, the government, without objec tion, referred to petitioner as having "gambled" with the funds on multiple occasions. Pet. App. 7a; C.A. App. 122-150. The defense responded to this argument in its own closing, arguing that investing in options is not gambling. C.A. App. 151-191.

3. At the end of the 13-day trial, the jury found peti tioner guilty on all counts. The next week, petitioner filed two separate motions, one for a judgment of acquit tal under Fed. R. Crim. P. 29, and a separate motion for a new trial under Fed. R. Crim. P. 33. Crim. No. 04- 10029, Docket Entry Nos. 158, 160. The motion for ac quittal argued that the government had introduced in sufficient evidence (1) that petitioner had not acted in good faith, (2) that petitioner caused the specific mail ings and wires alleged in the indictment, and (3) that venue was proper in the District of Massachusetts. Peti tioner also alleged a fatal variance from or constructive amendment of the indictment. Pet. App. 48a. The Rule 33 motion contended that a new trial was warranted be cause the government failed to disclose exculpatory evi dence and made improper closing arguments. Id. at 66a.

4. The district court denied petitioner's motion for acquittal. Pet. App. 48a-66a. The court first concluded that venue was proper. Id. at 48a-57a. Next, the court found no constructive amendment or variance because the government's trial theory was "well within the scope of the indictment." Id. at 58a. The district court rejec ted petitioner's good faith argument because petitioner's purported good faith belief "that he was free, under the terms of the transactions with the exchangors, to invest their funds as he saw fit * * * is not the point." Id. at 60a. The fraud, the court explained, stemmed not from what petitioner did with the money but from the fact that he "obtain[ed] the exchangors' money on the basis of assurances known by [petitioner] to be fraudulent." Ibid. The district court found sufficient evidence in the record for the jury to conclude that petitioner "knew that the material information that their funds would be used in options trading was withheld from the exchangors" and to "find beyond a reasonable doubt that [petitioner] had a specific intent to defraud." Ibid. Fi nally, the court concluded in light of petitioner's review and approval of the materially misleading promotional materials and transaction documents, as well as his role heading the company, that sufficient evidence supported the jury's conclusion that petitioner "reasonably foresaw that the mails or interstate wire communication facilities would be used in the consummation of the transactions." Id. at 63a.

Turning to the new trial motion, the district court re jected petitioner's claim that the government had com mitted any ethical breach in its disclosure of potentially exculpatory material. Pet. App. 66a-78a. The court, however, did find that the government's repeated use of gambling references in closing argument "may have di verted the jury from its consideration of the crimes charged and may thus have induced a verdict based on the jury's disapproval of the 'gambling,' rather than be cause the jury was satisfied beyond a reasonable doubt that the elements of the offenses charged had been prov en." Id. at 81a-82a. The court determined that "the jury would certainly have been warranted in concluding be yond a reasonable doubt that [petitioner] acted with in tent to defraud, but a contrary conclusion also would have been rationally possible on the evidence." Ibid. Thus, the court could not say "with confidence that the government's improper closing arguments did not taint the verdict." Ibid. On that basis, the court set the con viction aside and granted petitioner's motion for a new trial. Ibid.

5. The government appealed the grant of the new trial, arguing that because petitioner had not objected to the closing argument, plain error provided the appropri ate standard. A divided court of appeals affirmed. De clining to apply the plain-error standard and considering the "substantial deference" afforded the trial court in granting a new trial, the majority found no abuse in the decision. Pet. App. 8a-23a.1 Judge Campbell dissented from that determination. He would have remanded the case for further findings under a plain error standard. Id. at 36a-46a.

Petitioner attempted to cross-appeal the denial of his motion for acquittal, but the court of appeals dismissed for lack of jurisdiction. Pet. App. 23a-33a. The court rejected petitioner's claim that he could appeal under the collateral order doctrine because that doctrine ap plies only when a failure to permit immediate appeal will "infringe rights which appellant could not effectively vindicate in an appeal after final judgment in the case." Id. at 26a (quoting United States v. Kouri-Perez, 187 F.3d 1, 5 (1st Cir. 1999)). Applying this Court's decision in Richardson v. United States, 468 U.S. 317 (1984), the court of appeals concluded that petitioner had no right not to be retried for his offense, so there was no right for him to vindicate on appeal. Pet. App. 26a-28a.2 The court also noted that petitioner's "sufficiency arguments are deeply entwined with the merits of the mail and wire fraud charges that constitute the underlying action" and there was "little comparability between the review" of the new trial grant and the review that would be neces sary to resolve petitioner's sufficiency claims. Id. at 32a.

ARGUMENT

Petitioner contends (Pet. 15-23) that he is entitled to interlocutory review of his claim that the evidence at his first trial was insufficient, even though the district court granted him a new trial and the court of appeals af firmed that decision. That contention is foreclosed by the reasoning of Richardson v. United States, 468 U.S. 317 (1984). The court of appeals' application of Richard son is correct and does not conflict with the decision of any other appellate court. Review of that question by this Court is therefore unwarranted. Nor is there any need for the Court to review the second issue presented in the petition, whether the court of appeals had pendent jurisdiction over the denial of petitioner's motion to ac quit in light of the government's interlocutory appeal of the district court's grant of a new trial. The court of ap peals' decision on that point does not conflict with any decision of this Court or any other court of appeals, and the fact-bound determination that the two appeals were not sufficiently entwined with one another was correct and does not, in any event, warrant this Court's review.

1. Congress has, from the outset, limited appellate courts to reviewing the "final judgments and decrees" of federal district courts, a rule presently embodied in 28 U.S.C. 1291. See Midland Asphalt Co. v. United States, 489 U.S. 794, 798 (1989) (citing Judiciary Act of 1789, 1 Stat. 73, 84). "In a criminal case the rule prohibits ap pellate review until conviction and imposition of sen tence." Flanagan v. United States, 465 U.S. 259, 263 (1984).

In Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949), the Court has construed the final judgment rule to permit review of certain interlocutory decisions that implicate "rights asserted in the action, too impor tant to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated," id. at 546. To qualify for immediate appeal, under Cohen's collat eral order doctrine, an order must "[1] conclusively de termine the disputed question, [2] resolve an important issue completely separate from the merits of the action, and [3] be effectively unreviewable on appeal from a final judgment." Will v. Hallock, 546 U.S. 345, 350 (2006) (quotation marks omitted). In recent cases, the Court has stressed the doctrine's "modest scope." Ibid.

a. Appeal from the denial of a motion to acquit, when the district court has ordered a new trial, fails the collateral order doctrine's second requirement. Rather than being "completely separate from the merits of the action," review of a motion to acquit is exclusively about the merits of the action-the sufficiency of the govern ment's evidence to prove the elements of the crime. See Pet. App. 32a (petitioner's "sufficiency arguments are deeply entwined with the merits of the mail and wire fraud charges that constitute the underlying action").

Petitioner does not cite any decision by any court of appeals that holds that the denial of a motion to dismiss on sufficiency of the evidence grounds is subject to im mediate appellate review under the collateral order doc trine. To the contrary, several courts of appeals have, like the court below, specifically held that defendants are not entitled to review of the sufficiency of the govern ment's evidence under the collateral order doctrine. See Pet. App. 27a; United States v. Eberhart, 388 F.3d 1043, 1051-1052 (7th Cir. 2004), rev'd on other grounds, 546 U.S. 12 (2005); United States v. Ferguson, 246 F.3d 129, 137-138 (2d Cir. 2001); United States v. Wood, 958 F.2d 963, 970 (10th Cir. 1992). Therefore, that issue does not warrant further review by this Court.

b. In the absence of support for a collateral order appeal of sufficiency claims, petitioner attempts to anal ogize the denial of a motion to acquit to the denial of a non-frivolous motion to dismiss proceedings based on the Double Jeopardy Clause, which is immediately app ealable, see Abney v. United States, 431 U.S. 651 (1977), but that analogy is mistaken.3 As the Court explained in Abney, "[t]he elements of [a double jeopardy] claim are completely independent of [the defendant's] guilt or in nocence." Id. at 660. The defendant "makes no chal lenge whatsoever to the merits of the charge against him" in raising a double jeopardy claim, only that he has already been subjected to jeopardy for the same offense. Id. at 659. Here, in contrast, the issue presented by pe titioner on appeal went directly to the merits-that "the government failed to present sufficient evidence * * * to permit a reasonable jury to convict him." Pet. App. 23a. Thus, petitioner's analogy to double jeopardy fails.

Petitioner's analogy to double jeopardy is further flawed because, where, as here, a defendant has been found guilty and then granted a new trial, there has been no termination of the initial jeopardy. Under the Double Jeopardy Clause, acquittal of a substantive crim inal charge bars retrial because it finally disposes of the case and terminates the defendant's jeopardy. See, e.g., United States v. Martin Linen Supply Co., 430 U.S. 564, 571 (1972). This is so whether it is the jury, United States v. Ball, 163 U.S. 662, 671 (1896), the trial judge at a bench trial, Smalis v. Pennsylvania, 476 U.S. 140, 144 (1986), the trial judge on motion for acquittal, Burks v. United States, 437 U.S. 1, 10-11 (1978), or a reviewing court, id. at 18, that finds the evidence to be insufficient to sustain a conviction. By contrast, when a defendant's conviction is set aside based on "an error in the proceed ings leading to conviction," United States v. Tateo, 377 U.S. 463, 465 (1964), the defendant remains in "continu ing jeopardy" because the "criminal proceedings against an accused have not run their full course," Price v. Geor gia, 398 U.S. 323, 326 (1970). In such circumstances, the Double Jeopardy Clause does not preclude retrial. Ibid.

In Richardson v. United States, supra, the Court held that the Double Jeopardy Clause does not bar re trial after a mistrial, despite a defendant's request for a judgment of acquittal. In that case, after the district court declared a mistrial based on jury deadlock, the defendant moved to dismiss the charges on double jeop ardy grounds, arguing that the evidence presented at his trial had been insufficient as a matter of law. 468 U.S. at 318-319. The district court denied the motion, and the defendant appealed. Id. at 319. The court of appeals dismissed the appeal for lack of jurisdiction, and this Court issued a writ of certiorari. Id. at 319-320.

After finding the defendant's double jeopardy claim sufficiently colorable to support appeal under Abney, see Richardson, 468 U.S. at 322, the Court rejected it on the merits. The Court found that only an "event, such as an acquittal, which terminates the original jeopardy" implicates the Double Jeopardy Clause. Id. at 325 (cit ing Justices of Boston Mun. Court v. Lydon, 466 U.S. 294 (1984)). While an "appellate court's finding of insuf ficient evidence" constituted such an event, a trial court's declaration of a mistrial did not. Id. at 325-326. Consequently, "[r]egardless of the sufficiency of the evi dence at petitioner's first trial, he has no valid double jeopardy claim to prevent his retrial." Id. at 326 (em phasis added). The Court also concluded that future double jeopardy claims based on similar facts were no longer "colorable" and thus would not be appealable before final judgment. Id. at 326 n.6.4

The decision of the court below correctly applies the holding and analysis in Richardson. While the defen dant in Richardson sought sufficiency review after the court declared a mistrial based on a hung jury and peti tioner here pursues review after the grant of a motion for new trial, that distinction does not warrant a differ ent result. Petitioner's contention that the jury's find ing of guilt, which has been vacated by a district court order granting a new trial, constitutes a "greater state of finality" than a mistrial based on a hung jury, Pet. 14, and that the former "terminates the original jeopardy," Pet. 18 (quoting Richardson, 468 U.S. at 325), is untena ble. The only difference between Richardson and this case is that here twelve jurors found the government's evidence sufficient to prove petitioner's guilt beyond a reasonable doubt. While jeopardy can terminate with out an express acquittal, such as when a guilty verdict is returned only on a lesser charge, thereby implicitly ac quitting the defendant on the greater charge, see Price, 398 U.S. at 329, a finding of guilt that is then vacated does not constitute termination of jeopardy as to the count on which the guilty verdict was rendered, ibid. As in Richardson, there has been no termination of jeop ardy in petitioner's case because there has been no ac quittal at any stage of the proceedings. Cf. Lydon, 466 U.S. at 309 (noting that a "claim of evidentiary failure" does not terminate jeopardy, while a "legal judgment to that effect" does).

Although petitioner did not raise a double jeopardy claim per se, see note 4, supra, it is notable that the courts of appeals have, following Richardson, uniformly concluded that the Double Jeopardy Clause does not preclude a retrial following the grant of a new trial, re gardless of the sufficiency of the government's evidence at the first trial. See, e.g., Pet. App. 27a; Patterson v. Haskins, 470 F.3d 645, 660 (6th Cir. 2006) (retrial after court of appeals' failure to consider sufficiency of the evidence claim did not constitute double jeopardy, "even assuming that we would have determined that the evi dence was indeed insufficient"); United States v. Mc Aleer, 138 F.3d 852, 857 (10th Cir.) ("when a guilty ver dict is set aside on the defendant's motion, original jeop ardy has not been terminated and retrial does not vio late the Double Jeopardy Clause 'regardless of the suffi ciency of the evidence at the first trial'"), cert. denied, 525 U.S. 854 (1998); United States v. Gutierrez-Zam arano, 23 F.3d 235, 238 (9th Cir. 1994) ("Appellant's re trial will not violate the Double Jeopardy Clause regard less of the sufficiency of the evidence at the first trial."); United States v. Ganos, 961 F.2d 1284, 1285 (7th Cir. 1992) ("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"); United States v. Miller, 952 F.2d 866, 874 (5th Cir.) (re jecting claim that double jeopardy bars retrial if evi dence at initial trial was insufficient), cert. denied, 505 U.S. 1220 (1992).

Indeed, at least three courts of appeals have held that double jeopardy claims on grounds similar to those that petitioner advanced under Rule 29 were not suffi ciently colorable to sustain collateral order review under Abney. See McAleer, 138 F.3d at 857 (construing appeal of denial of Rule 29 motion as claim of double jeopardy, but finding that defendant had "not raised a colorable claim"); Ganos, 961 F.2d at 1285 (double jeopardy claim based on facts such as petitioner's was "frivolous"); Miller, 952 F.2d at 872 n.5 (claim colorable in light of circuit precedent predating Richardson, but no longer colorable in light of holding in Miller).

Thus, even if petitioner's analogy of his Rule 29 ap peal to double jeopardy claims were otherwise apposite, there would still be no reason for this Court to review the court of appeals' decision.

c. Petitioner appears to contend (Pet. 20-23) that the court of appeal's decision is somehow in tension with the practice adopted by many courts of appeals that, when the court orders a new trial on appeal from a final judg ment, it should or must also review a challenge to the sufficiency of the evidence at the first trial. Any such practice, however, has no relevance to the jurisdictional question presented here: whether the denial of the mo tion for acquittal is a collateral order subject to immedi ate appeal.

Significantly, petitioner concedes that the "rough consensus" of the courts that have adopted such a prac tice recognize that "review of sufficiency arguments af ter conviction and prior to retrial is not technically com pelled by the Double Jeopardy Clause." Pet. 21 (empha sis added). See, e.g., Patterson, 470 F.3d at 657 (6th Cir); United States v. Adkinson, 135 F.3d 1363, 1379 n.48 (11th Cir. 1998); United States v. Bishop, 959 F.2d 820, 829 n.11 (9th Cir. 1992), overruled in part on other grounds as stated in Boyle v. Brown, 404 F.3d 1159, 1171 n.1 (9th Cir. 2005); Miller, 952 F.2d at 874 (5th Cir.); United States v. Douglas, 874 F.2d 1145, 1150 (7th Cir.), cert. denied, 493 U.S. 841 (1989). While petitioner cites the Tenth Circuit as having held that "the prohibi tion against double jeopardy requires" the practice, see Pet. 21 (quoting United States v. Wiles, 106 F.3d 1516, 1518 (1997)), petitioner does not contend that his inter locutory appeal would have been heard in that circuit. To the contrary, the Tenth Circuit has expressly held, in a case subsequent to Wiles, that the denial of a Rule 29 motion is not subject to interlocutory appeal when the district court grants a retrial, even when the appeal is construed as advancing a double jeopardy claim. See McAleer, 138 F.3d at 857.

Thus, the practice reflected in the cases petitioner cites provides no grounds for the Court to review his contention that the collateral order doctrine justifies the review of the denial of a motion for acquittal when the district court has granted the defendant's motion for a new trial.

2. Petitioner additionally argues (Pet. 23-33) that the court of appeals erred in rejecting his claim that defendants have a right "as a matter of fairness and pru dence" to cross-appeal whenever the government files an interlocutory appeal under 18 U.S.C. 3731 (Supp. IV 2004). That argument also lacks merit and does not war rant this Court's review.

Explicit statutory authorization is required for the government to appeal in a criminal case. See United States v. Scott, 437 U.S. 82, 84-85 (1978); United States v. Sanges, 144 U.S. 310 (1892). Section 3731 provides a limited set of circumstances in which the government may appeal, including when the district court "grant[s] a new trial after verdict or judgment." The statute au thorizes only appeals "by the United States." 18 U.S.C. 3731 (Supp. IV 2004). As numerous courts of appeals have recognized, the statutory text implies no intent to permit a defense appeal or cross-appeal. See, e.g., Uni ted States v. Marasco, 487 F.3d 543, 546 (8th Cir. 2007) ("the statute does not provide for a cross-appeal by a defendant"); United States v. Hsia, 176 F.3d 517, 526- 527 (D.C. Cir. 1999), cert. denied, 528 U.S. 1136 (2000) (refusing to grant defendants "a windfall opportunity to delay proceedings via cross-appeal"), cert. denied, 528 U.S. 1136 (2000); United States v. Hamilton, 46 F.3d 271, 279 n.8 (3d Cir. 1995) (Section 3731 "preclud[es] a defendant from filing a cross-appeal") United States v. Becker, 929 F.2d 442, 447 (9th Cir.) ("A defendant may not file a cross appeal to a section 3731 interlocutory appeal."), cert. denied, 502 U.S. 862 (1991); United States v. Margiotta, 646 F.2d 729, 734 (2d Cir. 1981), cert. denied, 461 U.S. 913 (1983) (cross-appeal "unavail able with interlocutory appeals pursuant to §3731").

In particular, the Second, Third, Seventh, and Tenth Circuits have each held, as did the court below, that a government appeal of an order granting a new trial does not entitle a defendant to cross-appeal the denial of his motion for acquittal. See Eberhart, 388 F.3d at 1051- 1052 (7th Cir.); Ferguson, 246 F.3d at 137-138 (2d Cir.); Wood, 958 F.2d at 967-971 (10th Cir.); United States v. Cahalane, 560 F.2d 601, 608 (3d Cir. 1977), cert. denied, 434 U.S. 1045 (1978).

Petitioner urges the Court to grant the petition for a writ of certiorari in order to resolve a conflict between those courts and a decision of the Fourth Circuit in United States v. Greene, 834 F.2d 86 (1987), in which the court did review a defendant's sufficiency claim after affirming a government appeal from the grant of a new trial. The decision below does not squarely conflict with Greene, however, and, to the extent there might argu ably be a conflict, there are good reasons to believe the Fourth Circuit would revisit the holding in Greene if presented with the opportunity.

First, it appears that in Greene the "question as to the appealability of the denial of the Rule 29(c) motion, * * * was abandoned" by the government, 834 F.2d at 87, after "the district court certified that in view of the government's appeal, there was no just reason for delay in determining the issue raised by the defendant in his Rule 29(c) motion as to the sufficiency of the evidence to convict him," id. at 89. Because the court of appeals ap pears to have viewed the district court's certification and government's waiver of its challenge to the appeal as significant, there is no clear conflict between that deci sion and the judgment below, where neither of those fac tors existed.

Second, in Greene, the defendant had moved the dis trict court for acquittal because "to require another trial would violate his right not to be placed in jeopardy twice for the same offense." 834 F.2d at 87. The Fourth Cir cuit upheld its jurisdiction under the collateral order doctrine of "the district judge's denial of [Greene's] mo tion to dismiss the indictment on double jeopardy grounds." Id. at 89. To the extent that the court of ap peals believed Greene's double jeopardy motion to be non-frivolous, immediate appeal would have been consis tent with Richardson, 468 U.S. at 322, and Abney, 431 U.S. at 662. Here, by contrast, the court of appeals em phasized that petitioner had not moved the district court for relief on double jeopardy grounds, and, thus, there was no double jeopardy claim directly before it. Pet. App. 27a-28a n.9.

Third, while the Fourth Circuit has not had the need, or even the opportunity, to revisit Greene in the 20 years since that opinion issued, there are good reasons to be lieve that, to the extent the decision stands for the rule advocated by petitioner, the Fourth Circuit would recon sider the decision should the occasion arise. Greene did not even cite Richardson and its brief analysis combined reliance on the government's appeal with reliance on Cohen's collateral order doctrine. Since Greene, at least seven courts of appeals have held that a cross-appeal from a Section 3731 appeal is not permitted, four in the explicit context of sufficiency of the evidence review. This Court too has reiterated the narrowness of pendent appellate review, restricting review of non-appealable orders to those "inextricably intertwined" with appeal able ones or when review of the non-appealable order is "necessary to ensure meaningful review." Swint v. Chambers County Comm'n, 514 U.S. 35, 49-51 (1995). The Fourth Circuit has construed Swint to prohibit ap pellate review of non-appealable orders even when both the government and criminal defendant request such review as part of a conditional plea agreement, see Uni ted States v. Bundy, 392 F.3d 641, 649 (2004), thus cast ing significant doubt on the continuing vitality of Greene, to the extent that it ever stood for a general rule that the court of appeals could exercise pendent appel late jurisdiction over the denial of Rule 29 orders.

Petitioner contends (Pet. 26-28) that pendent appel late jurisdiction exists in this case under Swint because his motion for acquittal is "inextricably intertwined" with the review of his motion for new trial. The court of appeals correctly rejected that argument. The court correctly noted that to review petitioner's claims it would have to evaluate such issues as "causation, intent, constructive amendment of the indictment, reliance upon a theory of liability based on omission, good faith as an absolute defense, and venue." Pet. App. 32a. Not one of those issues was reviewed in the court's determi nation that the district court had not abused its discre tion in concluding that the government's closing argu ment might have inadvertently caused the jury to con vict based on its disapproval of petitioner's recklessly cavalier investment strategy rather than based on the evidence that petitioner acted with a specific intent to defraud. Even if there were some debate on the ques tion, the court of appeals' finding that the two motions were not inextricably intertwined is a factual one that does not warrant this Court's review.

Finally, petitioner also raises various policy concerns that he contends justify interlocutory review of his suffi ciency claim to serve "fairness and prudence." Pet. 24, 28-33. Principally, he contends that there are no "effi ciency" gains from declining to review his motion for acquittal at this time. But this Court has made clear that such generalized arguments do not suffice to sup port collateral order review. It is only "avoidance of a trial that would imperil a substantial public interest, that counts when asking whether an order is 'effectively' unreviewable if review is to be left until later." Will, 546 U.S. at 353.

In any event, the claimed efficiency of pendent collat eral review in this case is not borne out. The primary issue on appeal from the new trial motion was whether the district court should have applied a plain error stan dard in evaluating the motion. See Pet. App. 8a-18a.5 Little space was devoted in the briefs on the govern ment's appeal to the overall weight or strength of the evidence against petitioner. In its brief, the government spent 18 pages explaining that it made no improper ar guments and arguing that the district court used the wrong standard, Gov't C.A. Br. 28-43, but only three pages analyzing the strength of the evidence. Id. at 43- 46. Petitioner devoted just four pages of his 61-page response brief to the purported "weakness of the govern ment's case." Appellee Br. 32-36. Petitioner filed a sep arate, 58-page brief to press his Rule 29 claims. Cross- Appellant Br. 1-58. The court of appeals' fact-bound conclusion that it was unnecessary and inefficient to re solve those issues was correct and does not warrant re view.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

PAUL D. CLEMENT
Solicitor General
ALICE S. FISHER
Assistant Attorney General
DAVID E. HOLLAR
Attorney

JANUARY 2008

1 Judge Lynch filed a concurring opinion, emphasizing that she did not find that the government had argued "improperly," but only that the district court could determine in the interest of justice that the clos ing might have accidentally distracted the jury from considering the charges. Pet. App. 34a-35a.

2 The court of appeals noted that petitioner had not moved the trial court to dismiss the indictment on double jeopardy grounds and that the court of appeals was therefore "not reviewing a double jeopardy ruling by the trial court, or a claim that such a double jeopardy ruling itself falls within the collateral order doctrine." Pet. App. 27a-28a n.9. Rather, the court explained, petitioner had urged double jeopardy con siderations in support of his argument that the district court's denial of the motion to acquit was itself subject to immediate appeal. Ibid.

3 The Double Jeopardy Clause of the Fifth Amendment provides: "nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb." U.S. Const. Amend. V.

4 As noted above, see supra note 2, petitioner did not move the dis trict court to preclude a retrial on double jeopardy grounds, nor did he raise an independent double jeopardy claim in the court of appeals. See Pet. App. 27a-28a n.9. Petitioner instead raised double jeopardy con cerns only to support his argument that the denial of a motion to acquit should be treated as a collateral order subject to immediate appeal. Thus, Richardson's holding that the district court's denial of the defen dant's double jeopardy motion in that case was sufficiently colorable to support appellate jurisdiction (before the issue was resolved by this Court) has no application to this case.

5 Indeed, that was the position adopted by the dissent. See Pet. App. 37a-44a.