United States v. Alvarez-Moreno, 657 F.3d 896

Alvarez-Moreno was indicted in December 2008 on two counts of transporting an illegal alien for profit under 8 U.S.C. § 1324(a)(1)(A)(ii) and (1)(B)(i).
Less than two weeks before trial, the parties agreed to a bench trial and the district court vacated the jury trial, requiring a waiver of jury trial under Rule 23(a)(1).
The bench trial began October 15, 2009; Alvarez-Moreno was convicted, but no waiver of the jury right was ever filed or noticed.
Alvarez-Moreno moved to set aside the verdict, arguing the waiver was not voluntary and that the court failed to examine him; the government asked the court to treat this as a Rule 33 motion for a new trial or a sua sponte mistrial.
The district court, recognizing the structural error, granted a new trial under Rule 33 after converting the motion, vacated the conviction, and ordered a new trial.
Alvarez-Moreno challenged the district court’s actions, arguing Rule 33 requires a defendant’s motion and that retrial would violate double jeopardy; the government urged a mistrial under Rule 26.3 as alternative basis.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Can a district court order a new trial under Rule 33 without a defendant’s motion?	Alvarez-Moreno (defendant)	Alvarez-Moreno did not seek a Rule 33 motion; he objected to conversion of his motion and sought otherwise; double jeopardy concerns barred sua sponte new trial.	No; Rule 33 requires defendant’s timely motion and the court erred in converting the motion.
May a district court declare a mistrial post-verdict under Rule 26.3 to permit retrial?	Alvarez-Moreno	District court erred by relying on post-verdict mistrial authority which requires pre-verdict conditions and manifest necessity.	No; mistrial post-verdict is improper as basis for retrial; the court erred in using Rule 26.3 to justify a new trial.
Does ordering retrial after jeopardy attaches violate double jeopardy where waiver was not properly obtained?	Alvarez-Moreno	Retrying would violate the Double Jeopardy Clause due to improper waiver and lack of voluntary, knowing, and intelligent waiver.	Yes; retrial under these circumstances would implicate double jeopardy and cannot be ordered absent proper waiver.
Does collateral order jurisdiction allow immediate review of the district court’s error?	Alvarez-Moreno	Colorable double jeopardy claim supports collateral-order review; merits review is appropriate.	Yes; the appeal is properly before the court under collateral-order doctrine given the colorable double jeopardy claim.

Bailon-Santana v. United States, 429 F.3d 1258 (9th Cir. 2005) (structural error in waiver of jury trial warrants reversal)
Duarte-Higareda v. United States, 113 F.3d 1000 (9th Cir. 1997) (failure to properly waive jury trial requires reversal of conviction)
United States v. Smith, 331 U.S. 469 (Supreme Court 1947) (Rule 33 cannot be used to order a new trial on court’s own motion)
United States v. Navarro Viayra, 365 F.3d 790 (9th Cir. 2004) (district court may not convert Rule 29 judgment of acquittal into Rule 33 motion)
Murphy v. Massachusetts, 177 U.S. 155 (1900) (consent under Rule 33 avoids double jeopardy concerns)
United States v. Patterson, 381 F.3d 859 (9th Cir. 2004) (double jeopardy considerations in retrial contexts)
Oregon v. Kennedy, 456 U.S. 667 (1982) (manifest necessity standard for mistrial prior to verdict)
Downum v. United States, 372 U.S. 734 (1963) (mistrial justifications predicated on events before verdict)
Smith v. United States, 22 U.S. (9 Wheat.) 579 (1824) (historical basis for not allowing court-initiated new trials post-verdict)
United States v. Serfass, 420 U.S. 377 (1975) (jeopardy attaches when the court begins to hear evidence in a bench trial)