STATE OF ARIZ. v. MANYPENNY

KENNEDY, Circuit Judge:

The case comes before us for a second time. Our earlier opinion is reported at 608 F.2d 1197 (9th Cir. 1979). William Manypenny was a United States border patrolman on duty near the line dividing Mexico from Arizona. In circumstances much disputed, he wounded an illegal alien and was indicted, under Arizona law, for assault with a deadly weapon. Manypenny removed the prosecution to the United States District Court for Arizona, as was his right under 28 U.S.C. § 1442(a)(1) (1976). Before trial, Manypenny's attorney apparently made a strategic choice not to raise the federal immunity defense of In re Neagle, 135 U.S. 1, 10 S.Ct. 658, 34 L.Ed. 55 (1890)1 and went to trial on the theory the shooting was accidental rather than justified. Upon trial, Manypenny was convicted.

The trial court entered judgment in accordance with the verdict and denied Manypenny's timely Fed.R.Crim.P. 29 motions for acquittal based on insufficiency of the evidence. Manypenny moved for a new trial under Fed.R.Crim.P. 33 or, alternatively, arrest of judgment under Fed.R.Crim.P. 34, on the theory that since state law could not govern the acts of a federal official in the circumstances, the court lacked jurisdiction to apply state law.

After due consideration, the district court denied the Rule 34 motion, holding that Arizona did have jurisdiction over the act in question. State of Arizona v. Manypenny, 445 F.Supp. 1123, 1125-27 (D.Ariz. 1977). Under the court's reasoning, state criminal jurisdiction was acceptable because the federal immunity defense of In re Neagle and our own decision in Clifton v. Cox, 549 F.2d 722 (9th Cir. 1977), which had been decided after Manypenny's trial but before the post-trial motions, established adequate protection for federal employees. Manypenny, 445 F.Supp. at 1127.2 The trial judge apparently never ruled on the new trial motion. He did find, however, that he had "committed fundamental error" in not either granting defendant's motion for a directed verdict of acquittal or, at least, placing the immunity defense before the jury in his instructions. Id. The trial judge searched the record and found that, under the standard of United States v. Rojas, 554 F.2d 938 (9th Cir. 1977), no reasonable and properly instructed jury could have convicted Manypenny. The district court thus construed the Rule 34 motion as a Rule 29(c) motion and granted Manypenny a judgment of acquittal. Manypenny, 445 F.Supp. at 1127-28.3

The State of Arizona appealed, arguing that the district court had no jurisdiction to order a judgment of acquittal sua sponte, and that in any case its action was erroneous. Manypenny, in addition to defending the decision of the district court on the merits and asserting that reversal would violate the double jeopardy clause, argued that there was no jurisdiction to hear the appeal. We held there was no appellate jurisdiction, Arizona v. Manypenny, 608 F.2d 1197 (9th Cir. 1979), but that determination was reversed by the Supreme Court.4 On remand from the Supreme Court, we must now decide whether there is any double jeopardy bar to this appeal and, if not, whether the district court was correct in its actions below.

We conclude there is no double jeopardy bar to this appeal by the State of Arizona, under either the federal or the Arizona Constitutions.

The question whether double jeopardy bars a given appeal, under the federal Constitution, depends on the action necessary upon remand after the appeal is resolved. United States v. Wilson, 420 U.S. 332, 342-53, 95 S.Ct. 1013, 1021-26, 43 L.Ed.2d 232 (1975). Under this standard, there is no federal double jeopardy bar to the appeal.

It is established that if a jury's verdict of guilty is set aside but can be reinstated on appeal, there is no violation of the double jeopardy clause. United States v. Rojas, 554 F.2d 938 (9th Cir. 1977), cited with approval in United States v. DiFrancesco, 449 U.S. 117, 130, 101 S.Ct. 426, 433, 66 L.Ed.2d 328 (1980).5 Any retrial would be in response to the defendant's still pending motion and so would not implicate the double jeopardy clause. United States v. Dinitz, 424 U.S. 600, 96 S.Ct. 1075, 47 L.Ed.2d 267 (1976). That rule is applicable here.

We assume, arguendo, that if Arizona law forbade appeal by the state in this case, no appeal could be taken in federal court.6 We find, however, that double jeopardy as defined under the Arizona Constitution does not differ significantly, in the respects relevant here, from the federal protection against multiple prosecution. In State ex rel Hyder v. Superior Court, 128 Ariz. 216, 624 P.2d 1264 (1981), the Arizona Supreme Court, following federal precedents, held that an appeal from a judgment of acquittal, after a jury verdict of guilty, would not violate the double jeopardy clause. "We therefore hold that [the defendant] would not be placed twice in jeopardy by an order reinstating the jury verdict of guilty." Id., 624 P.2d at 1269-70.7

There is no double jeopardy to bar the appeal under either federal or Arizona law, and we turn to the merits.

The State of Arizona argues with some force that the district court had no jurisdiction to consider, much less grant, the entry of a judgment of acquittal more than seven days after the jury verdict.

Fed.R.Crim.P. 29(c) states in part:

Rule 45(b) states that the court lacks power to extend the time for taking any action under Rule 29. Arizona also cites several cases which more or less strongly support refusal to entertain untimely Rule 29(c) motions.8

Rule 29(c) creates a deadline by which defendants must present motions for judgment of acquittal to the court; it does not address the court's inherent power to grant such a judgment. We do not read the mention in Rule 29(a) of a court granting such a judgment "on its own motion" before submission to a jury as an elimination of a court's inherent power to grant such a judgment after submission to the jury.9

We held in Richter v. United States, 488 F.2d 170 (9th Cir. 1973) that the district court has inherent power to order discovery of the names of witnesses in some circumstances. As we stated in that case:

Id. at 173-74.

Exercise of judicial power by entry of orders not expressly sanctioned by rule or statute in order to correct the legal process or avert its misfunction has been approved in varied circumstances. E.g., Roadway Express, Inc. v. Piper, 447 U.S. 752, 764-67, 100 S.Ct. 2455, 2463-64, 65 L.Ed.2d 488 (1980) (assessing costs against parties or attorneys); Cooke v. United States, 267 U.S. 517, 534, 45 S.Ct. 390, 394, 69 L.Ed. 767 (1925) (contempt power); United States v. Armstrong, 621 F.2d 951, 954-55 (9th Cir. 1980) (allowing inspection of property belonging to third parties); Franquez v. United States, 604 F.2d 1239 (9th Cir. 1979) (ordering jury trial on an issue when not contemplated by statute); In re Sealed Affidavit(s) to Search Warrants (Agosto), 600 F.2d 1256 (9th Cir. 1979) (sealing papers filed with the court); United States v. Simmons, 536 F.2d 827, 832-34 (9th Cir.), cert. denied, 429 U.S. 854, 97 S.Ct. 148, 50 L.Ed.2d 130 (1976) (dismissal for want of prosecution); United States v. Malcolm, 475 F.2d 420 (9th Cir. 1973) (ordering a defendant to undergo a psychiatric exam).

We conclude that a federal district court, which has properly retained jurisdiction of a case, has the power to grant a verdict of acquittal, before or after submission of the question of a defendant's guilt to the jury, if necessary to correct a manifest error. There are limits on this authority, cf. United States v. Smith, 331 U.S. 469, 67 S.Ct. 1330, 91 L.Ed. 1610 (1947),10 and its exercise is reviewable in the Court of Appeals.

To resolve this case, we need only hold that a court has power to reconsider a timely motion for judgment of acquittal premised on insufficiency of the evidence when the court, which still retains jurisdiction of the case, decides, in considering another of defendant's motions, that its earlier denial of the Rule 29 motion was erroneous. We do not address the scope of inherent power in other contexts.

We next determine whether the entry of a judgment of acquittal by the district court was proper. We conclude it was not. The trial court found that the prosecution had presented insufficient evidence to surmount the federal immunity defense, as set out in Clifton v. Cox, 549 F.2d 722 (9th Cir. 1977). While we doubt the appraisal that a rational jury, instructed on the immunity defense, could not have convicted the defendant, we need not discuss it for this was the wrong question to ask.

It was improper for the trial court, sua sponte, to grant a motion for judgment of acquittal premised on the prosecution's failure to meet a defense not raised by the defendant and on a matter the prosecution was not bound to disprove in order to establish all the elements of the crime. The Government was not required to open the question of immunity where the defense saw fit to try the case on another, to some extent inconsistent, theory. Our review of the record indicates that the evidence was fully adequate to sustain the conviction on the case as presented, and it supports the further inference that the defendant's story would have fit rather awkwardly with the defense of immunity in any event. See Arizona v. Manypenny, 608 F.2d at 1205 (dissenting opinion). It was error, therefore, to enter judgment of acquittal.

As we understand the state of the record, there has yet to be a disposition of Manypenny's motion for new trial. To the extent that motion is premised on the same issues as those raised in appellant's Rule 29(c) and Rule 34 motions, it appears there is no merit to it. The district court itself denied the Rule 34 motion, and we have ruled that the Rule 29(c) motion must be denied because none of the contentions advanced by appellant warrant an acquittal. While we doubt, therefore, that there is merit to it, the authority to rule on a new trial motion is vested generally in the district court, and accordingly we remand the case for the district court's determination on the point.

The court acknowledges with appreciation the skillful professional representation by Bernardo P. Velasco, who undertook to represent the defendant on this phase of the case, and who is requested to act as counsel in further proceedings in the district court.

Judgment of acquittal is REVERSED; the cause is REMANDED for further proceedings.