COUNSEL: Jeremy D. Warren, Federal Defenders of San Diego, San Diego, California, for the defendant-appellant.

Louis E. Peraertz, Jessica Dunsay Silver, United States Department of Justice, Washington, D.C., for the plaintiff appellee.

Appeal from the United States District Court for the Southern District of California.

Before: Cynthia Holcomb Hall and Thomas G. Nelson, Circuit Judges, and James Ware,1 District Judge.

The Opinion filed September 17, 1999, is withdrawn. The Petition for Rehearing and Petition for Rehearing En Banc and the Response thereto will be deemed to be addressed to the substitute opinion filed herewith.

Appellant Charles Frederick Byrne ("Appellant") appeals from the district court's order denying his motion under Fed. R. Crim. P. 29 to dismiss Count 5 of a multi-count indictment based on the Double Jeopardy Clause of the Fifth Amendment. The district court had first granted the motion after oral argument but then immediately took the order under reconsideration and denied the motion five days later. Appellant contends that the motion to dismiss was unambiguously granted during oral argument, and that the district court violated the Double Jeopardy Clause by later reversing the ruling and reinstating the acquitted count. Appellant also contends that Rule 29 does not allow for reconsideration of a judgment of acquittal, and that the proper action for the district court was to reserve ruling on the motion until it was confident in its ruling.

We have jurisdiction pursuant to 28 U.S.C. S 1291, and we affirm.

Appellant and five other former Marine Corps military policemen were named in a six-count indictment charging deprivation of civil rights, conspiracy to violate civil rights, and conspiracy to commit false statements. The charges stemmed from an assault on three undocumented immigrants near Camp Pendleton, California. Appellant was charged only in Count 5, 18 U.S.C. S 3, Accessory after the fact, and Count 6, 18 U.S.C. S 371, Conspiracy to commit false statements.

After completion of a military training exercise on the evening of August 1, 1994, five of the defendants (except Appellant) went to a small camp just outside the boundaries of Camp Pendleton, where they confronted three undocumented immigrants. One of the defendants yelled "Migra, " to indicate to the immigrants that they were immigration authorities and demanded to see immigration papers. One undocumented immigrant was then handcuffed and severely beaten, requiring medical attention.

The incident was investigated by the Oceanside Police Department and the Naval Investigative Service ("NIS"). Appellant and the other defendants were questioned and initially denied involvement. Appellant signed a statement claiming that neither he or any of the other Marines left the base perimeter on the night in question and further that none of them had anything to do with the assault of the immigrants. The investigation was closed by the NIS in October, 1994.

The investigation was reopened in June, 1997, when one of the defendants confessed to the assault while applying for a position with the Vermont State Police. This defendant cooperated with the FBI, who then obtained confessions from three defendants and a statement from another defendant in which he admitted to punching one of the undocumented immigrants and providing false statements to cover up the assaults.

All defendants except Appellant and Mark Adam Burton pled guilty and testified at trial for the government. Severance of Appellant and Burton was denied. The case was tried before Judge Gonzalez and a jury starting on June 12, 1998. On June 19, 1998, the government rested its case, and Appellant filed his motion under Fed. R. Crim. P. 29 on the same day. In his motion, Appellant asserted that the government had failed to prove an element of Count 5, the accessory after-the-fact charge. Specifically, Appellant allegedthat the government had not proven that Appellant had knowledge that the other defendants had acted under color of law during the assault. The district court heard oral argument on the motion on June 25.

After oral argument, the district court granted Appellant's motion. Counsel for the government then immediately asked the Court for permission to file a motion for reconsideration including the trial testimony transcript of Mr. LaCosta, the NIS agent who had questioned the Marines. The district court granted the government's request. The government filed a motion to reconsider, including the transcript of Mr. LaCosta's testimony, on June 29.

On June 30, the next scheduled trial date, the district court informed the parties that it was denying Appellant's Rule 29 motion, based on the information provided by the government. Appellant's counsel objected, asserting that jeopardy had terminated due to the June 25 order granting the motion for judgment of acquittal. The district court disagreed, as the jury had not been told that Count 5 was not going forward. The district court then severed Count 5 and allowed Appellant to file his notice of appeal. The rest of the case proceeded and Appellant was acquitted on the remaining count.

A. Standard of Review. "Whether the Double Jeopardy Clause has been violated is a matter of law, reviewed de novo by this court." United States v. McClain, 133 F.3d 1191, 1193 (9th Cir. 1998), cert. denied, 118 S. Ct. 2386 (1998); See United States v. Blount, 34 F.3d 865, 867 (9th Cir. 1994). [1] B. Double Jeopardy. The Double Jeopardy Clause "protects a defendant in a criminal proceeding against multiple punishments or repeated prosecutions for the same offense." United States v. Gaytan, 115 F.3d 737, 742 (9th Cir. 1997). Jeopardy attaches when the jury is empaneled and sworn. See United States v. Martin Linen Supply Co., 430 U.S. 564, 569 (1977). Jeopardy terminates when the jury reaches a verdict, or when the trial judge enters a final judgment of acquittal. See Fong Foo v. United States , 369 U.S. 141, 143 (1962).

The issue on appeal, disputed by the parties, is whether the district court's oral granting of a motion for acquittal was a "final judgment of acquittal," thus terminating jeopardy. Both parties rely on United States v. Blount, 34 F.3d 865 (9th Cir. 1994) to support their respective contentions.

Blount involved a felony prosecution for "tree spiking" on federal lands, under a statute that made the act a felony if damages exceeded $10,000 and provided for a misdemeanor charge if damages were less. At the close of the government's case, the defendant moved for a judgment of acquittal, arguing that there was no evidence that the damages exceeded $10,000. The court gave the government a chance to modify its charge to the lesser-included misdemeanor offense, but the government declined to do so. The district court orally granted the acquittal, and announced to the jury that the tree spiking counts were "no longer in this case." After the defense rested, the district court reinstated the acquitted counts as lesser-included misdemeanors, reasoning that the acquittal on the felony charges did not preclude reinitiation of the lesser-included offense.

On appeal, the Blount court held that an "acquittal is `a resolution, correct or not, of some or all of the factual elements of the offense charged.' " Id. at 868 (quoting Sambria v. United States, 437 U.S. 54, 71 (1978)). Examining the facts and circumstances surrounding the district court's ruling, the Blount court found that it was clearly a "determinative" ruling. Id. The district court had discussed its concerns with the parties, had made a ruling of acquittal,announced the ruling to the jury, and trial had proceeded. Thus, the Blount court held, jeopardy ended for the defendant on the felony and all lesser-included offenses when "the district court orally granted Blount's motion for acquittal . . . and informed the jury of its decision." Id. at 868. Additionally, there was no indication that the grant of the motion was "tentative or subject to reconsideration." Id.

The facts here are distinguishable from Blount , and Appellant relies on excerpts of the record offered out of context of the entire proceeding on June 25. The record indicates that the district court judge discussed her concerns with the parties regarding the evidence at some length and then announced that she was granting the motion by stating: "And I am granting the defendant's motion under Rule 29 as to Count 5." However, immediately after that announcement, the government asked the district court to reconsider, pending submission of the trial transcript of Mr. LaCosta. After some discussion, the district court agreed, stating:"I will let you do that, but I have made up my mind, unless I can be convinced otherwise." Additionally, unlike Blount, there was no announcement of the court's decision to the jury, and the trial did not resume until June 30, after the district court had denied Appellant's motion.

Appellant also contends that the district court erred in relying upon United States v. LoRusso, 695 F.2d 45 (2nd Cir. 1982), in deciding that it could reconsider its ruling on the acquittal. Appellant asserts that LoRusso is not on point and is not controlling authority for this Court.

In support of its ruling, the Blount court factually distinguished LoRusso. The facts in LoRusso were that the district court stated that it would grant the Rule 29 motion, and the government then immediately asked to allow the case to go forward on the lesser-included offense. The LoRusso court held that there was no double jeopardy as judgment had not been entered and there had been no indication to the jury of the ruling. LoRusso, 695 F.2d at 54. These facts are very similar to the facts underlying this appeal. LoRusso is thus on point and is supported by Blount.

Another Second Circuit case is also helpful here. In United States v. Washington, 48 F.3d 73 (2nd Cir. 1995), cert. denied, 515 U.S. 1151 (1995), the district court orally granted defendant's motion for acquittal at the conclusion of the government's case. However, judgment was not entered and thetrial continued, with the defense calling its first witness. The proceedings then adjourned for lunch, during which the district court reconsidered its ruling. After lunch, the district court reversed the order outside of the presence of the jury, based on its reconsideration. The Second Circuit affirmed the district court's reversal, quoting LoRusso, stating that: "An oral grant of a motion for acquittal is `no more than an interlocutory order,' which the court has `inherent power to reconsider and modify . . . prior to the entry of judgment.' " Washington, 48 F.3d at 79. In distinguishing the facts in Washington from Blount, the Second Circuit characterized the Blount district court as "announcing its unqualified dismissal of a felony charge to the jury" where the Washington district court "reversed its own ruling outside the jury's presence and in a timely fashion." Id. This prompt reversal did not subject the defendant to a "second trial" or a "successive prosecution." Id.

In the present case, we need hold only that the Double Jeopardy Clause was not violated because it is clear from the facts underlying the present appeal that the district court's initial ruling on the defendant's motion for acquittal was not final. As we recognized in United States v. Blount, double jeopardy does not bar a district court from revising a ruling on a motion for acquittal when that ruling is tentative or rendered subject to reconsideration. See 34 F.3d 865, 868 (9th Cir. 1994). In the present case, the districtjudge made it clear that her ruling was not final in the course of the same colloquy in which she announced the decision. As we noted earlier, the district judge informed the parties in the course of setting forth the reasons for her tentative judgment that "I have made up my mind, unless I can be convinced otherwise. " Later in the colloquy, she reiterated that her decision was not final by stating that other discussions relating to the aiding and abetting count would continue until she finalized her decision: "we are going to -and we will talk about jury instructions on this count, but at this point the count is out, Count 5." Because the district judge made clear, in the same colloquy in which she issued her ruling on the motion for acquittal, that the motion was subject to reconsideration, the Double Jeopardy Clause was not violated.

C. Rule 29(b) as Prohibiting Reconsideration of a Judgment of Acquittal. Appellant also contends that Federal Rule of Criminal Procedure 29(b), amended in 1994 after the Blount decision, does not allow for reconsideration of a judgment of acquittal. Appellant's contention is based on an interpretation of the language of the Advisory Committee Notes of the amended Rule 29(b) as being specifically concerned with a defendant's double jeopardy rights. Appellant asserts that the proper procedure for the district court, as required by the amended Rule 29(b), was for either the government to ask the court to defer its ruling or for the court, sua sponte, to reserve deciding the motion until it was confident in its ruling.

If a motion for judgment of acquittal is made at theclose of all the evidence, the court may reserve decision on the motion, submit the case to the jury and decide the motion either before the jury returns a verdict or after it returns a verdict of guilty, or is discharged without having returned a verdict.

The court may reserve decision on a motion for judgment of acquittal, proceed with the trial (where the motion is made before the close of all the evidence), submit the case to the jury and decide the motion either before the jury returns a verdict or after it returns a verdict of guilty or is discharged without having returned a verdict. If the court reserves decision, it must decide the motion on the basis of the evidence at the time the ruling was reserved.

The 1994 amendment to Rule 29(b) allows the district court to defer a motion brought at the end of the government's case in the same way the prior revision allowed this deferral if the motion was brought after presentation of all the evidence. As the Advisory Committee Note states, the purpose of the amendment is to "remove the dilemma in those close cases in which the court would feel pressured into making an immediate, and possibly erroneous, decision or violating the rule as presently written by reserving its ruling on the motion." Although the Note discusses the double jeopardy concerns raised once an acquittal is granted, nothing in the amended rule or notes explicitly precludes a district court from reconsidering a Rule 29 acquittal. AFFIRMED