The government appeals from a district court judgment of acquittal. We dismiss the appeal because further prosecution is barred by the Double Jeopardy Clause of the Fifth Amendment.

The government charged appellee Bonnie Joyce Ember in a two count indictment with importation and possession with intent to distribute of approximately 530 grams of cocaine in violation of 21 U.S.C. Secs. 841(a)(1), 952(a), and 960(a)(1). United States customs inspectors conducted a search of Ember after she arrived at Los Angeles International Airport on a flight from Lima, Peru. The customs inspectors allegedly discovered cocaine in a pair of black suede boots that Ember was wearing and in a pair of ski boots that she was carrying.

Ember waived her right to trial by jury, and trial commenced before the district court on May 24, 1983. Ember objected to the introduction of the black suede boots into evidence on the grounds that they were obtained through an illegal search and seizure. Despite the government's contention that Ember had waived this objection by not making a timely motion to suppress, the district court held that the boots were inadmissible.

The district court also excluded the cocaine allegedly taken from Ember on the grounds that the government had failed to establish the chain of custody of the evidence. A Drug Enforcement Administration (DEA) agent testified that he mailed the substance seized from Ember to a DEA chemist, who confirmed that it was cocaine and returned the evidence to the agent. Because the agent repackaged the cocaine after it was returned to him and because the Assistant United States Attorney failed to present a chain of custody record, the district court concluded that there was insufficient evidence establishing chain of custody and the cocaine was therefore inadmissible for "lack of foundation." The government requested that it be allowed to return to court the next day with authority supporting the legality of the search and with the DEA chemist, who would testify as to the authenticity of the cocaine. The district court denied these requests. One of the customs inspectors returned to the witness stand for further direct examination by the government. After this testimony, the court ordered the government's case to a close.

Ember, in response to the district court's suggestion, then made a motion for acquittal pursuant to Federal Rule of Criminal Procedure 29.1 The district court granted this motion and discharged the defendant.

The general principles applicable to this area are well settled. 18 U.S.C. Sec. 3731 authorizes appeals by the government in criminal cases except when the Double Jeopardy Clause bars further prosecution.2 See United States v. Martin Linen Supply Co., 430 U.S. 564, 568, 97 S. Ct. 1349, 1352, 51 L. Ed. 2d 642 (1977). "A judgment of acquittal, whether based on a jury verdict of not guilty or on a ruling by the court that the evidence is insufficient to convict, may not be appealed and terminates prosecution when a second trial would be necessitated by a reversal." United States v. Scott, 437 U.S. 82, 91, 98 S. Ct. 2187, 2193, 57 L. Ed. 2d 65 (1978) (footnote omitted). Appeal by the government is barred even if the judgment of acquittal was entered for erroneous reasons. Sanabria v. United States, 437 U.S. 54, 64, 98 S. Ct. 2170, 2178, 57 L. Ed. 2d 43 (1978); Fong Foo v. United States, 369 U.S. 141, 143, 82 S. Ct. 671, 672, 7 L. Ed. 2d 629 (1962).

The government argues that double jeopardy does not bar this appeal because the district court's action was in substance an order of dismissal on constitutional grounds rather than a judgment of acquittal. The trial judge's characterization of his own action cannot control the classification of the action. Scott, 437 U.S. at 96, 98 S.Ct. at 2196. Instead, a "defendant is acquitted only when 'the ruling of the judgment, whatever its label, actually represents a resolution [in the defendant's favor], correct or not, of some or all of the factual elements of the offense charged.' " Id. at 97, 98 S.Ct. at 2197 (quoting Martin Linen Supply Co., 430 U.S. at 571, 97 S.Ct. at 1354). When a district court enters a judgment of acquittal pursuant to Rule 29, appeal is barred only when "it is plain that the District Court ... evaluated the Government's evidence and determined that it was legally insufficient to sustain a conviction." Martin Linen Supply Co., 430 U.S. at 572, 97 S.Ct. at 1355.

After reviewing the entire record, we conclude that the district court's action does in fact represent a resolution of factual elements of the offense charged. The government's argument that the district court erred in excluding certain evidence is beside the point.3 Even if the rulings excluding the evidence were erroneous, double jeopardy bars this appeal if the district court's action is properly characterized as a judgment of acquittal. See Sanabria, 437 U.S. at 68-69, 98 S.Ct. at 2180-2181. We find that the district court evaluated the government's evidence and determined that it was insufficient to sustain a conviction.4

Our previous decision in United States v. Gonzales, 617 F.2d 1358 (9th Cir.), cert. denied, 449 U.S. 899, 101 S. Ct. 268, 66 L. Ed. 2d 129 (1980) does not control our disposition of this case. The government argues that Gonzales establishes that the district court could not have considered the sufficiency of the evidence before it, because the government never rested its case. We believe that Gonzales is distinguishable. In Gonzales, the district court ruled in the middle of the government's case, and we therefore concluded that it could not have considered whether the evidence was sufficient. 617 F.2d at 1362. In contrast, the district court here ordered the government to rest because it had no more witnesses to call, and the court subsequently granted the defendant's motion for acquittal.5

The government also maintains that Gonzales suggests that this case is appealable because, as in Gonzales, the district court's action was in substance an order of dismissal based on constitutional grounds. We disagree. In Gonzales, the district court dismissed the prosecution because of the unavailability of potential material witnesses. 617 F.2d at 1362. This was accomplished by an "acquittal." We concluded that the "acquittal" was in substance an order of dismissal, and as such was appealable. Id. We cannot reach that conclusion here. In this case, the district court determined that the admissible evidence was insufficient. It is immaterial that the inadmissibility of certain evidence rested on constitutional grounds.6

Because we conclude that the Double Jeopardy Clause bars appeal from the judgment of acquittal, we dismiss the government's appeal.7

APPEAL DISMISSED.